IDENTITY - The Law Mind Legal Dictionary

IDENTITYAuthored

The Law Mind • 1333 words

Definition

Identity has several distinct legal meanings depending on context:

Evidentiary identity (core meaning). The sameness of a person, thing, or subject — the fact that what is before the court is the same as what is represented, claimed, or charged. This is the foundational sense: establishing that the defendant is the same person previously convicted, that the goods recovered are the stolen goods, or that a document is what it purports to be. Identity in this sense is a fact question for the jury.

Patent law identity. Such sameness between two inventions, designs, or combinations that one constitutes an infringement of the patent granted for the other. Courts have distinguished mere similarity from identity; identity of invention requires that the accused device or method reproduce the substance of the patented claim, not merely approximate it.

Criminal law identity. The identification of a person as the perpetrator of a crime, or — in the modern statutory context — the fraudulent assumption of another person's identifying information. Identity theft as a federal offense (18 U.S.C. § 1028) is the contemporary statutory descendant of this concept.

Constitutional identity. The term has acquired distinct weight in constitutional law through its association with personal identity as a component of liberty — encompassing sexual orientation, gender identity, and related aspects of selfhood that courts have recognized as protected under the Due Process and Equal Protection Clauses.

Common Language

Modern common usage (Wiktionary): Sameness or identicalness; also, the distinguishing character or selfhood of an individual or group — who or what someone is, including recurring characteristics that enable recognition by others or oneself.

Historical common usage (Webster's 1913): The state or quality of being identical, or the same; sameness. Also, the condition of being the same with something described or asserted — as in establishing the identity of stolen goods.

The common meaning has expanded dramatically in modern usage to encompass personal selfhood, cultural belonging, and psychological self-conception. Classical legal usage was narrower and more forensic: identity meant sameness as provable fact, not selfhood as lived experience. A researcher must be alert to which register a source is using. Modern constitutional doctrine increasingly imports the broader sense, while evidentiary and criminal doctrine largely retain the classical, forensic sense.

Common Confusion

Identity vs. identification. Identity is the substantive legal fact — whether two things are the same. Identification is the process or act by which that fact is established (a lineup, a fingerprint comparison, a chain of custody). Historical sources sometimes use the terms interchangeably; modern doctrine treats them as distinct. A witness identifies a defendant; the jury determines identity.

Identity (evidentiary) vs. identity (constitutional). These are not merely different senses of the same concept — they operate in entirely different analytical frameworks. Conflating them when reading modern cases will produce significant misreading.

Recognized Forms

/SUBTYPES

Identity of persons. Whether the individual before the court is the same as one previously convicted, attainted, or charged. The paradigm case in historical doctrine.

Identity of property. Whether items recovered or produced are the same items alleged to have been stolen, transferred, or affected. A jury question; verdicts have been set aside where courts improperly directed this finding.

Identity of invention. Patent doctrine; whether two inventions are substantively the same such that one infringes the other.

Identity theft. Fraudulent assumption or use of another person's identifying information. A modern statutory category with federal and state components.

Gender identity / sexual orientation identity. Constitutional doctrine recognizing aspects of personal identity as protected liberty interests. Developed through a distinct line of Supreme Court cases.

Why It Matters in Research

The term does significant work across multiple areas of law that rarely speak to each other, and corpus researchers risk importing assumptions from one context into another. An 1880 treatise discussing identity of persons in a criminal context is doing something categorically different from a 2015 constitutional opinion discussing gender identity — but both use the same word.

In historical sources, identity is almost exclusively forensic. The question is always: is this the same as that? Evidentiary treatises in the Burrill tradition treat identity as a species of circumstantial evidence, analyzed through physical description, witness testimony, documents, and habit. Researchers working in 19th-century criminal or property materials should expect this register exclusively.

The patent law usage is narrow and technical. The phrase "identity of invention" became a term of art in infringement analysis and should be distinguished from the broader evidentiary sense even when the two appear in the same era.

The modern constitutional dimension — personal identity as a component of liberty — enters doctrine primarily after Lawrence v. Texas (2003) and develops rapidly through Windsor, Obergefell, and Bostock. This usage is largely absent from the historical dictionary sources, which have no entry for it. Researchers working in constitutional law should not expect historical dictionaries to illuminate this sense of the term.

Identity theft as a statutory category is a late 20th-century development. Federal criminal treatment under 18 U.S.C. § 1028 dates to 1998. Historical sources are silent on it entirely.

A practical trap: the identity-of-persons doctrine in historical criminal law was heavily used in recidivism and habitual offender contexts — establishing that the defendant now before the court was the same person previously convicted. Researchers pulling historical sources on "identity" in criminal law may find this material, not material on eyewitness identification, which was analyzed under separate doctrinal headings.

Historical Dictionary Support

The historical dictionaries largely agree on the foundational definition: identity as sameness, as a provable fact. Black's (both editions) and Bouvier's align closely, each defining identity in evidentiary terms as "sameness" and the fact that a subject before the court is what it is represented to be. Bouvier adds useful specificity about the identity-of-persons problem — whether a man is the same person previously convicted — and correctly notes it as a jury question, citing Blackstone and Stephen.

Burrill's entry is fragmentary in the available extract but the citation to Burrill's Circumstantial Evidence (at pages 382, 453, 631, and 644) is repeated by both Black's editions and suggests that Burrill's was the leading analytical treatment of identity as an evidentiary matter in the late 19th century. Researchers working in this period should consult that treatise directly.

The Black's (2nd ed.) extension into patent law — "identity of invention" — is a meaningful addition not present in the Bouvier's entry, reflecting the growth of patent litigation in the post-Civil War industrial period.

Anderson's entry, as available, addresses ice and water rights — an apparent corpus artifact — and does not illuminate identity doctrine.

None of the historical sources address constitutional identity, gender identity, or identity theft. This is not an omission to be criticized; these concepts did not exist in their modern form when the dictionaries were compiled. It is, however, a significant gap for any researcher using historical dictionaries as a guide to contemporary doctrine.

Jurisdictional Note

Identity of persons and identity of property are state common law doctrines with broadly consistent rules across jurisdictions, though procedural specifics (jury instruction standards, harmless error rules for misidentification) vary. Identity theft statutes vary significantly: federal law under 18 U.S.C. § 1028 coexists with state statutes that differ in scope, definitions of identifying information, and penalties. Constitutional identity doctrine under the federal Constitution sets a floor; states may extend greater protection.

Encyclopedia Cross-Reference

Identity Theft (18 USC 1028) — Law Mind Criminal Law Encyclopedia
Sexual Orientation and Gender Identity: Lawrence, Windsor, Obergefell, and Bostock — Law Mind Constitutional Law Encyclopedia

IDENTITYmain

Black's Law Dictionary • 1891

In the law of evidence. Sameness; the fact that a subject, person, or thing before a court is the same as it is rep- resented, claimed, or charged to be. See Burrill, Circ. Ev. 382, 453, 631, 644. are either entirely wanting, or are manifest- ed to the slightest possible extent. Ray, Insan. § 58; Whart. & S. Med. Jur. § 222. There is a distinction between "idiocy" and "dementia;" the first being due to the fact that there are original structural defects in the brain; the second resulting from the supervention of organic changes in a brain originally of normal power: Ham. Nervous System, 338. Idiocy is that condition in which the human creature has never had, from birth, any, the least, glimmering of reason; and is utterly destitute of all those intellectual faculties by which man, in general, is so eminently and peculiarly distin- guished. It is not the condition of a deranged mind, but that of a total absence of all mind Hence this state of fatuity can rarely ever be mis- taken by any, the most superficial, observer. The medical profession seem to regard it as a natural defect, not as a disease in itself, or as the result of any disorder. In law, it is also considered as a defect, and as a permanent and hopeless incapaci- ty. 1 Bland. Ch. 386.

IDENTITYmain

Anderson's Dictionary of Law • 1890

But he has no proprietary interest in ice that forms upon the water of a navigable stream adjacent to his own shore, unless he first takes and secures it. 1 Since the owner of land bordering upon a flowing stream may use a reasonable quantity of the water, he may detain a reasonable portion until it freezes, and cut and sell the ice. But he may not interfere with the beneficial enjoyment of the water by owners below him." Ice upon a pond or stream is of such an ephemeral nature as to be more like personal than real property. It may be sold by parol as personalty. See CAR- Sameness. 1. In larceny, trover, detinue, and replevin, the thing in question must be identified; so in torts, for damage done to specific property; and so in all indictments where the taking of property is the gist. Identity of person must be proven in all criminal prosecutions. 18 In the ordinary case of buying and selling for cash, the identity of the parties is entirely immaterial; and in many cases where that matter is material, a party is estopped by his dealing with the other from saying that he was mistaken as to the person. 19 See ARRAIGN; CONFUSION, Of goods; DESCRIPTION; NAME. 2. Property transferred in fraud of creditors may be subjected to the payment of their claims upon identification of the property; as, in the case of personalty given to a wife.20 One who obtains property by fraud acquires no title to it, but he and all transferees with notice are trustees for the original owner, who may recover the property as long as it can be traced and identified in its 1 Myer v. Fegaley, 39 Pa. 429 (1861). * Alvord v. Moffatt, 10 Ind. 366 (1858). • Bergman's Appeal, 88 Pa. 120 (1878). 4 Cato v. Hutson, 7 Mo. 142 (1841). • Morton v. McClure, 22 III. 257 (1859). • Jeffries v. Bartlett, 75 Ga. 232 (1885). Marr v. Wetzel, 3 Col. 5 (1876). * Elliott v. Knott, 14 Md. 121 (1859). • Stanley v. Noble, 59 Iowa, 410 (1882) 10 Rowe v. Palmer, 29 Kan. 337 (1883). 11 Power v. Woolley, 21 Ark. 462 (1860). 12 Marx v. Hanthorn, 30 F. R. 586 (1887). 13 United States v. Spintz, 18 F. R. 377 (1883). 14 City of Lafayette v. Wortman, 107 Ind. 404 (1886). 15 Smurr v. State, 88 Ind. 506 (1883), cases; 107 id. 410. 16 Siebert v. State, 95 Ind. 470 (1884). See 1 Bish. Cr. • Higgins v. Kusterer, 41 Mich. 322 (1879): 32 Am. Pr. § 688; 1 Whart. Cr. L. 309. Rep. 164-68 (1880), cases. • Aschermann v. Best Brewing Co., 45 Wis. 266 (1878). As to value, when unlawfully replevied, see Washington Ice Co. v. Webster, 125 U. S. 426 (1888), cases. • Woodman v. Pitman, 79 Me. 456 (1887). • Commonwealth v. Stone, 103 Mass. 421 (1869). Bergman's Appeal, 88 Pa. 123 (1878); Heil's Appeal, 10 id. 453 (1861). 17 Commonwealth v. Warren, 143 Mass. 569 (1887), in which "Celestia" and "Celeste" were found to be the same name; other cases cited. 18 See 4 Bl. Com. 396; 2 Crim. Law Mag. 287; 34 La. An. 1082. 19 Clement v. British American Assurance Co., 141 Mass. 303 (1886), Morton, C. J. 20 Phipps v. Sedgwick, 95 U. S. 9 (1877).

IDENTITYmain

Burrill's Law Dictionary • 1870

[L. Lat. identitas, idemp-

IDENTITYn.

Websters Unabridged Dictionary (1913) • 1913

The state or quality of being identical, or the same; sameness. Identity is a relation between our cognitions of a thing, not between things themselves. Sir W. Hamilton. The condition of being the same with something described or asserted, or of possessing a character claimed; as, to establish the identity of stolen goods. An identical equation.

identitynoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

Sameness, identicalness; the quality or fact of (several specified things) being the same. | The difference or character that marks off an individual or collective from the rest of the same kind; selfhood; the sense of who something or someone or oneself is, or the recurring characteristics that enable the recognition of such an individual or group by others or themselves. | A name or persona—a mask or appearance one presents to the world—by which one is known. | An equation which always holds true regardless of the choice of input variables. | Any function which maps all elements of its domain to themselves. | An element of an algebraic structure which, when applied to another element under an operation in that structure, yields this second element. | A well-known or famous person.

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