According to a report in the Brockton Enterprise, Dery Moeda of Brockton, Massachusetts has been indicted by a Plymouth County grand jury for Home Invasion and related Massachusetts Violent Crimes. It is alleged that Moeda broke into a home on October 11, 2012 around 7:30 in the morning. While in the home he placed a gun against a thirteen year old girl’s head, telling her to remain silent while the apartment in which she lived was searched for nearly one hour. Apparently Moeda and his cohorts were looking for money they believed to be in the home. The girl identified Moeda through a photo array. In addition to Home Invasion, Moeda has been charged with Kidnapping and Larceny Over $250. The case is being prosecuted in the Brockton Superior Court.
Brockton Criminal Defense Lawyer, Home Invasion, Larceny
Whenever a Massachusetts Criminal Lawyer defends a case like this one the photographic identification process gets scrutinized. I always want to know what the victim saw and how strong her identification of the suspect was prior to her being presented with the photographic array. The identification itself and the photographic array get introduced into evidence unless the defendant’s lawyer is able to show that this aspect of the identification process was unnecessarily suggestive and that the identification itself was tainted because of it. The burden is on the defendant to show by a preponderance of the evidence that given the totality of the circumstances the identification process was so “suggestive and conducive to irreparable misidentification as to deny the defendant due process of law”. While this task is difficult and arguably unconstitutional given its burden shifting application, recently the Massachusetts Supreme Judicial Court established an advisory protocol to help ensure against abuse. This would require law enforcement to make it clear to the witness that the person who committed the crime may or may not be in the array. The witness should also be advised that it is just as important to clear someone as it is to identify someone. Additionally, the witness should be told that the individuals depicted in the photographs might appear different than they did at the time of the crime and that regardless of whether or not an identification is made the investigation will continue. The procedure shall also ask the person making the identification to state the degree of certainty he has in selecting the photo.
When this procedure is not used in accordance with the Supreme Judicial Court’s recommendation I usually ask the trial judge to incorporate in the jury instructions language that reflects law enforcement’s failure. I view a significant percentage of out of court photographic identifications as unreliable and suggestive. This is certainly something worth litigating in Massachusetts Criminal Cases.
The Law Offices of Stephen Neyman defends the accused. We represent people accused of all types of crimes throughout Massachusetts. If you are in trouble you need a lawyer. Call us at 617-263-6800 or send us an email to discuss your criminal case.