PATC/LLRMI Legal Questions Answered

Response Provided By:
Jack Ryan, J.D., Public Agency Training Council - Legal & Liability Risk Management Institute

Always note that state law may be more restrictive on police power than the U.S. Constitution.

I was writing to ask for clarification in one area, specifically whether a police department can issue copies of "Mug shots" of persons arrested by our department to the news media. I noticed in one of the handouts titled "Checklist for Public Information Officers" that this practice is listed in the items that MAY NOT be released. However, the handout notes that "Confidentiality Laws and Court Rules vary from state to state". Due to this, I am writing to see if you could clarify this issue in regards to Texas.

I doubt that Texas would give any confidentiality or privacy right to a suspect with respect to a mug-shot although numerous states have concluded that mug-shots are not public records and thus are not subject to a FOIA or Public Records request. The issue that the PIO checklist addresses is the Constitutional Issue with respect to any Identification of a criminal suspect. The real identification (non-hearsay) of a suspect occurs in court. The police must use extreme caution as not to taint the in-court identification.

When a mug-shot is released to the media and published there are two potential arguments that may arise.

First, the victim and witness know who the suspect is based on the published photograph rather than from the scene of the crime, thus the in-court identification is tainted.
The second possible argument is a prejudicing of the jury pool by prejudicial pre-trial publicity i.e. the guilty looking photograph or statements within the article tied to the picture that does not constitute admissible evidence.

There are hundreds of cases on prejudicial pre-trial publicity and some on mug-shots as tainting identification as well.

don't release mug-shots unless ordered to do so

fight any order to release mug-shots if there are ongoing identification issues

and finally, if there is a law enforcement/public safety function to be gained by release, i.e. suspect is dangerous and on the run or trying to find additional witnesses/victims then shift the balance in favor of releasing.