ID or IDK…? Hernandez Double Homicide Will Likely Be Decided on Witness Identification

At first blush, evidence revealed during yesterday's press conference handed down by a Suffolk County Grand Jury suggests prosecutors have a strong case against former New England Patriots football player Aaron Hernandez; a very strong case it would seem in comparison to the Odin Lloyd homicide case in Bristol County where, unless prosecutors can show the murders of Daniel Abreu and Safiro Furtado in Boston provide a motive for the murder of Lloyd in North Attleborough, they will be relying wholly on circumstantial evidence to prove that charge. In Boston, unlike Fall River, they say they have the murder weapon (a .38 revolver). They say they have video surveillance of Hernandez at or near the scene and purportedly stalking his victims in his silver SUV. They say they have his silver SUV; and they say they have eyewitnesses - perhaps three if the all passengers who survived the shooting are cooperating; five if purported witnesses in the car behind Hernandez saw anything of substance; and maybe even six if the DA's Office eventually convinces erstwhile Hernandez pal Alexander Bradley to "flip" and cooperate. Overwhelming evidence? Maybe. Slam dunk conviction? Maybe not so much…!

Yesterday the DA and the civil plaintiffs' lawyer in the wrongful death suit filed by Abreu and Furtado's family members went out of their way to stress the victims and Hernandez did not know each other. That fact makes this whole case a senseless tragedy. That same fact also opens the door to an all but certain defense of mistaken identity/false identification. And because it appears that no eyewitnesses stepped forward for at least another year after the shooting, it also raises immediate questions about delayed identity. And because there was a saturation of news coverage following Hernandez's arrest in the Odin Lloyd murder case, it also presents a case of tainted and/or suggestive identification. In other words, make no mistake, the Boston double homicide case is going to be defended on a multiple grounds claim of wrongful ID.

For years, experienced criminal defense attorneys like me have been challenging the so-called soft sciences behind identification evidence; essentially arguing that there are innumerable factors that can render it inherently unreliable. Such challenges have prompted an extensive examination of the issue here in Massachusetts, culminating in the release of the . Amongst its many findings, the report discusses why eyewitness identification is inherently unreliable and should often be viewed with skepticism. It also establishes best practices and procedures for conducting identifications. Moreover, it finds that such best practices and procedures, even when ardently adhered to, are at best helpful to a proper identification, but by no means guarantee accuracy and reliability. Moreover, there are countless examples of cases where such practices and procedures aren't adhered to, and the Report details the various possibilities for misidentification and witness proclivities for misremembering, being unduly (even if not consciously) influenced, etc.

What this all means for the Hernandez defense team is that while the timing of the announcements of double murder indictments couldn't be worse in terms of its potential impact on the arguably weak Bristol County murder case, the backdrop for mounting an aggressive identification challenge couldn't be better. A reasonable doubt need only be raised in the mind of just one juror to hang the jury and prevent a conviction. In a case like this, though, the defense could well be selling itself short by playing for a proverbial "tie" when an all or nothing defense like mistaken identity/false identification may be so readily available. That said, the gun, the car, the surveillance and even the possibility of Alexander Bradley's cooperation could easily make that unavailing. Regardless, you can be sure that Boston-based criminal defense attorneys like me who make their living questioning the alleged immutability of so called forensic "science" and exposing the supposed premises on which they are based will be watching with more than passing interest as Hernandez's Suffolk County homicide case unfolds. If you're interested, too, be sure to check back here at to see whether or not I have, in fact, correctly "ID'd" the central issue(s).