Mistaken Identity as a Legal Defense in Colorado Criminal Cases

Mistaken identity can be a strong legal defense to a criminal charge in Colorado. The defense claims that the crime happened, but you were not the one who committed it. It is especially common in charges that rely on eyewitness testimony. Experts have recently been finding that these witnesses are far less reliable than expected.


  • Sam attempts to murder John but John survives. Police show John a photo array. John points to a picture of Tim.
  • Janet sees a robbery. She goes to the police station to pick the robber from a lineup. She cannot decide between two people in the lineup and makes a guess.

The mistaken identity defense challenges eyewitness testimony. It can also be supported with an alibi defense. A Colorado criminal defense attorney can help raise these defenses. In this article, a lawyer talks about the following aspects of the mistaken identity defense:

police lineup

1. How the mistaken identity defense works in Colorado

Mistaken identity is a legal defense. It works by undermining the reliability of a witness.

Mistaken identity is a common defense when the case against you relies on witnesses. Showing that the witnesses should not be trusted can keep a jury from convicting you. When the prosecutor has little else against you, undermining a key witness can lead to an acquittal.

The importance of the mistaken identity defense has become more apparent in recent years. Researchers at the Innocence Project looked at why people were wrongfully convicted of crimes. They found that almost three-quarters of wrongful convictions that were later overturned by DNA evidence eyewitness problems.1

Some experts have found several situations where witnesses are especially unreliable:

  • The witness and the suspect are different races,
  • The suspect showed a weapon to the witness,
  • The witness was in danger our under stress, and
  • A witness' ability to see, hear, or sense the suspect were impaired.

1.1. Witnesses struggle to identify someone of a different race

Studies have suggested that witnesses struggle to identify someone of a different race.2 According to the Innocence Project, 42% of cases involving mistaken identities involved different races.3

If the witness who identified you is a different race, the chance that they made a mistake increases.

1.2. Witnesses are unreliable when they are threatened with a weapon

Other studies have found that witnesses threatened with a weapon tend to focus on the weapon.4 The shift in focus keeps them from noticing details about a suspect's face. This prevents the witness from making a reliable identification later on.

Weapon focus is a serious problem. Victims of a crime who were threatened with a weapon can struggle to identify their assailant. When there are no other witnesses, weapon focus can lead to a mistaken identification.

1.3. Stress and danger make witnesses unreliable

Some studies have shown that stress and danger can prevent witnesses from recalling what happened. One study compared witnesses to a violent crime to those who saw a nonviolent crime. People who saw a nonviolent crime were better are recalling the details of what happened.5

This is a big problem. Incorrect identifications have a higher price when the crime was a violent one. The problem gets worse when the victim of a violent crime was also threatened with a weapon. This can make the witness even more likely to wrongly identify their assailant.

1.4. Impaired senses lead to mistaken identities

Poor lighting and other factors can also prevent a witness from getting a good look at a suspect. If the witness does not appreciate these problems, they can rush into a mistaken identification.

witness speaking to police

2. What kind of evidence is used to prove mistaken identity?

A mistaken identity defense can use whatever evidence casts doubt on the witness. This includes:

  • Subtle suggestions by police that the crime was committed by a certain person,
  • Prior statements made by the witness that shows they are biased against certain people, and
  • Problems with the way the identification was made.

2.1. Suggestive lineups and photo arrays

After a crime, police can gather suspects into a lineup for a witness to identify someone. Police can also present a witness with an array of photos for them to identify the suspect they saw.

When police do this, they can leave subtle clues that change the outcome. Sometimes, these clues are deliberate. Police can try to nudge a witness into identifying someone police already think committed the crime. Sometimes, these clues are mistakes. Even if they are a mistake, the incorrect identification they cause can be used as evidence against an innocent person.

Examples of suggestive police lineups or photo arrays include the following situations:

  • Witnesses say a black man burglarized a store. Police put together a lineup of suspects for witnesses. The lineup has 3 white men and 1 black man.
  • A woman says she was raped. Police give her an array of photos of suspects who match her description. 3 photos are taken from far away and have a blue background. 1 photo is a close-up with a red background.

2.2. Signs of a biased witness

Evidence that the witness is biased against you can undermine their identification. This evidence can take the form of:

  • Social media posts against ethnic or racial groups,
  • A history of sexist and demeaning jokes, and
  • Prior statements attacking certain groups of people.

2.3. A tainted identification process

Police should make the process of identifying a suspect as neutral as possible. However, they can taint the process in a variety of ways.

Examples of the identification process getting tainted include:

  • A police officer refers to an assault suspect as “our guy” before the witness sees him.
  • The tone of a detective's voice when he asks, “Are you sure?” after a witness picks an arson suspect out of a lineup.
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Legal References:

  1. Innocence Project, “Mistaken Identifications are the Leading Factor In Wrongful Convictions.”

  2. See e.g., John P. Rutledge, “They All Look Alike: The Inaccuracy of Cross-Racial Identifications,” 28 American Journal of Criminal Law 207 (2000-2001), Gary L. Wells and Elizabeth A. Olson, “The Other-Race Effect in Eyewitness Identification: What Do We Do About It?” 7 Psychology, Public Policy, and Law 230-246 (2001).

  3. See note 1.

  4. Elizabeth F. Loftus, Geoffrey R. Loftus, and Jane Messo, “Some Facts About ‘Weapon Focus,'” 11 Law and Human Behavior 55-62 (1987).

  5. Richard S. Schmechel, Timothy P. O'Toole, Catherine Easterly and Elizabeth F. Loftus, “Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence,” 46 Jurimetrics 177-214 (2006).

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