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Challenging Eyewitness Identifications in Criminal Cases

Challenging Eyewitness Identifications in Criminal Cases

We’re all seen those courtroom dramas, on TV and in movies, where at the climactic scene, an eyewitness testifying on the stand points and says, “He did it!” It almost never happens even remotely like that, but it makes for good entertainment, and that’s why you bought the popcorn.

The truth is both far more mundane and much less kind to eyewitness testimony. Eyewitnesses rarely have the benefit of perfect lighting, getting a clear view of the person supposedly committing the crime, being close enough to make a positive identification, and other factors needed to make reliable eyewitness identifications.

The fact is, eyewitness identifications have long been known to have the potential to be very unreliable. Research dating to the 1960s has shown there are considerable grounds to doubt the accuracy of most eyewitness identifications in criminal cases. While such witness often have great confidence in their memory and ability to identify a suspect, that confidence generally is misplaced and eyewitness identifications are considered among the least reliable kinds of evidence.

Why Are Eyewitness Identifications so Unreliable?

Many factors play into the high error rate in eyewitness identifications. Many of these factors stem from the fact that most people presented for their eyewitness identification testimony have never witnessed a crime other than the one about which they are being called to testify. This can manifest itself in a number of ways that contribute to such testimony being unreliable, including:

  • Witnesses to a crime who are then testifying in court are likely to experience high levels of stress or anxiety, including during the crime, during their interviews with the police and prosecutors, and then during their testimony at trial.
  • Human beings aren’t video recorders. The brain tends to fill in small gaps in memory, and not necessarily with what was actually seen.
  • Witnesses frequently focus on weapons employed in the crime, not on the suspect’s identity. When a suspect is pointing a gun, few witnesses look at their face.
  • Police and prosecutors can use identification procedures, including lineups, which can act in a suggestive fashion to steer a witness toward a particular result.
  • Extensive research has shown cross-racial eyewitness identifications to be exceptionally suspect.

Jurors generally view as powerful testimony an eyewitness who identifies a suspect. That doesn’t mean the testimony is accurate. In fact, there are many reasons to believe that testimony might be considerably less than accurate. For instance, police procedures in conducting a lineup can help “suggest” to the witness which member of the lineup the police hope the witness will “identify.”

This can be totally involuntary on the part of the police, through unconscious communications such as gestures, eye movement, or body movements. This is common in group lineups where the officer conducting the lineup knows who the suspect is. Such unconscious communication can occur both in live group lineups and in photo arrays.

Most U.S. police agencies use the simultaneous lineup, either live or using a photo array. In a simultaneous lineup, the witness views a group of people or photos. One of the people is the actual suspect, while the others are just fillers who may or may not look like the suspect. Other agencies use what is known as a sequential lineup, with the witness viewing one person or photo at a time. Both can be subject to unintentional bias.

Researchers suggest that lineups should be double-blind, where neither the witness nor the officer conducting the lineup knows who the actual suspect is in the case. In this way, the conducting officer cannot subconsciously steer the witness toward the “right” suspect. Researchers also suggest that the witness should be recorded at the time of making the identification to make it possible later to assess the witness’s degree of certainty.

Witnesses tend to become more certain of their identification as time passes, even if they were unsure at the time of the identification. Recording that uncertainty can help assess the validity of the identification later, even if the witness has developed a high level of confidence in the identification.

How Can You Combat Unreliable Eyewitness Identifications?

Eyewitness identifications can be devastating in court, even though they often are highly unreliable. Defense attorneys have a number of means at their disposal to combat such identifications, however. Two of these methods take place before the trial starts, while the final method takes place during trial. Only the first can actually put a stop to an in-court eyewitness identification. The other two can mitigate the damage, however, and throw doubt on the identification. These methods are:

  • A motion to suppress pretrial identifications: If successful, such a motion can stop in-court identifications in their tracks, before they ever happen. To be viable, such a motion would have to show that suggestive identification procedures were used and created a substantial likelihood of misidentification.
  • Voir dire: This is the process during jury selection where the attorneys question potential jurors. The goal should be to find jurors who believe that eyewitnesses can be honest but wrong, particularly if a cross-racial identification is at issue.
  • Cross-examination: Skillful cross-examination can give the jury the impression that the witness is wrong about the identification, but is not to blame for the mistake.

If an Eyewitness Identified You in a Criminal Case in DuPage, Kane, or Cook County, Contact the Criminal Defense Attorneys of Martin & Kent, L.L.C.

Eyewitness testimony, particularly identifications of suspects, often is unreliable, but it can have a powerful impact on a jury. If you are facing criminal charges and the prosecution claims to have an eyewitness, call the criminal attorneys of Martin & Kent, L.L.C. We will fight hard on your behalf, and we have the experience with the system – including years as felony prosecutors—to bring to the table for your case. For a consultation in DuPage, Kane, or Cook County, contact us 24 hours a day at (630) 474-8000.



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