Do you recognize this man? Maybe more importantly, do you recognize his swag?
Police in Galveston released this security-camera footage last week, saying the man pictured was one of three suspects in a burglary on March 27. It wasn't much of a burglary — they broke into a "Duck Tours" amphibious tourist vehicle from which they took the fire extinguisher — but a burglary nonetheless. Police Capt. Jeff Heyse said the other two suspects had been tentatively identified from "still photographs taken at the scene" (he didn't say who took them), and that police had also tentatively identified this guy based on the brief dance he does in the clip.
"The 16-year-old juvenile suspect is known for his 'swag,' or signature dance move," Heyse said, "and [he] does it in the hallways at school." Presumably, although the report doesn't make it clear, a classmate or teacher saw the video, recognized the distinctive swag and notified authorities.
But is swag admissible to identify a defendant? Assuming it really is unique or distinctive — and it looks that way from the clip, but I'm no swag expert — I'd say yes. Under Texas Rule of Evidence 406, which is similar to the federal rule, "Evidence of the habit of a person … whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person … on a particular occasion was in conformity with the habit or routine practice." Normally, you'd be offering evidence that a person's in the habit of doing something in order to prove that he or she did it this time, too. Here, you can see the suspect doing … whatever it is he's doing, so the evidence of habit would instead be relevant to show it's the same person doing it. Actually, you might not even need Rule 406 for that, if it really is distinctive.
This doesn't seem at all likely to go to trial anyway, which is too bad. I assume the defense would bring a bunch of people into court to do the same moves in an effort to show the swag wasn't distinctive, and I'd like to see those courtroom sketches.