The difference between Tyrone Lamont Allen’s booking photo and the photo seen by bank robbery witnesses is striking, and the image has sparked a national controversy.

Portland police digitally altered the suspect’s mugshot before showing it to witnesses. Now, a federal judge in Oregon is considering whether that is grounds to have the witnesses’ identification thrown out of the case, in a ruling that could set a precedent for the legality of this and other digitally altered mugshots.

“The revelations raise big questions about how many people may have been falsely identified by eyewitnesses in recent years based on changes [to their photo],” said Mat do Santos, the legal director of Oregon’s ACLU chapter.

The alterations date back to April 2017, when Oregon police were searching for the bank robber dubbed the “Foul Mouth Bandit”.

During the search, police described the man who robbed four banks as a middle-aged black man who usually wore a hoodie, baseball cap and sunglasses. The description, based on witness accounts, did not mention tattoos.

Police decided they would arrest Tyrone Allen for a series of bank robberies. Problem – he didn’t fit the suspect’s description. He has prominent facial tattoos. The suspect had none. Solution – the police digitally erased his tattoos from his mugshot. https://t.co/ogoeZRQEjr — Rebecca J. Kavanagh (@DrRJKavanagh) August 17, 2019

Police came to suspect Allen in the case. They organized a photo array, showing multiple profile pictures to witnesses in the robberies. But the photo of Allen they used in the photo lineup did not show Allen’s tattoos, including one above both eyebrows.

The forensic criminalist Mark Weber testified during Allen’s trial that he used Photoshop to paint over Allen’s tattoos, as he’s done with other mugshots.

Officials have said the alterations were meant to ensure that Allen did not “stand out” because of his tattoos. The lead investigator, Detective Brett Hawkinson, who is also part of the FBI’s taskforce on bank robberies, testified that he had ordered the tattoo removal and argued that the tattoos could distract witnesses.

“There are times it has been appropriate to make those small subtle changes. The main purpose is not to make the suspect stand out,” Hawkins said.

Legal experts, and Allen’s lawyer, however, worry that the digital erasure could contribute to unreliable witness testimony. The lawyer, Mark Ahlenmeyer, has filed a motion to throw out the positive witness identifications based on the mugshot controversy.

“This is a very, very slippery slope given the advent of technology,’’ he told Oregon Live, which first reported the case. “We don’t know where this may end.’’

Subtly altering mugshot photos is legal, but the US justice department, in a January 2017 memo, implored law enforcement to document the occasions and reasons behind any changes.

In Allen’s case, that didn’t happen. Weber testified he did not keep track of the changes he made..

Do Santos of the ACLU said that it was troubling law enforcement didn’t document any changes to the photograph and argued the Portland police bureau should proactively disclose similar cases.

“If you can’t do a good photo lineup, the answer isn’t to change the photo, the answer is that a photo lineup just can’t be done,” he said.