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The Duffy Law Criminal Defense Blog

Problems With Eyewitness Identification

Juries tend to give it a significant amount of weight if an eyewitness to a crime later identifies the defendant as the person they saw committing the crime. This is problematic, however, as many eyewitness identifications are in themselves, highly problematic. Many eyewitness identifications are unreliable and yet a prosecutor may present an ID as an absolute and undeniable fact at trial. If your case involves an eyewitness identification, you need a lawyer who knows how to defend against identifications and challenge their credibility in the courtroom.

Types of Identifications

If a crime victim or someone standing by witnessed someone committing a crime, law enforcement can seek an identification of a suspect in three primary ways:

  • Lineup – In a lineup, officers will call the eyewitness into the police station. The Witness will then view a row of people standing in a room and will inform officers if they recognize the perpetrator as one of the people in the lineup.
  • Photo lineup – An officer will use a photo of the suspect and place it among other photos, asking the eyewitness if they recognize any of the photos as the perpetrator.
  • Show-up – When police apprehend a suspect, they will bring the suspect to the location of the eyewitness to see if it’s the person they witnessed committing the crime. In this situation, the suspect is usually alone and often, in handcuffs or in the back of the police car.

After an eyewitness identifies a suspect in one of the above ways, that witness will be called into court to testify to their identification at trial. The witness will be asked if the person they identified is present in the room and, in most cases, the witness will point right to the defendant. This can be a dramatic moment of a trial for a jury, however, the jury often does not adequately consider that the large majority of eyewitness identifications are inaccurate and can result in a false accusation and wrongful conviction.

Stress of the Eyewitness During the Crime

The human brain is not a camera or video recorder and it cannot record a memory exactly as it was. For this reason, the brain will often reconstruct memories without a person even realizing that the memory has been manipulated. Accurately remembering a specific face is also particularly challenging for witnesses to crimes or crime victims for the following reasons:

  • Witnesses likely experience extreme anxiety and stress during the crime
  • If a weapon was used, a victim or witness will likely be primarily focused on the weapon and not on the face of the perpetrator
  • If the perpetrator and the witness of are different races, studies have shown “cross-racial” identification is less reliable than identifications made of the same race

Often, however, eyewitnesses honestly want to help police officers catch the “bad guy.” Therefore, they can become overly confident in their ability to identify the offender they witnessed. This can lead them to identify a suspect even if they are not 100 percent sure of the identification. Whether this uncertain identification is subconscious or not, it can be dangerous for criminal defendants.

Improper Procedures by Law Enforcement

In many cases, the problems with eyewitness identifications are only compounded by overly suggestive procedures used by law enforcement. First, a show-up is inherently suggestive, as the eyewitness sees a person in handcuffs and in police custody. This can obviously lead them to associate the suspect with a criminal. After all, why else would the police have apprehended that suspect? Although show-ups are almost always overly suggestive, they can still be admitted as evidence in criminal trials.

In a lineup, whether in person or a series of photos, police are supposed to find others who are similar enough in appearance to the suspect that the suspect is not the obvious choice. Often, police simply find whoever is available without much regard for suggestiveness. In addition, if police know who the suspect is, they can – intentionally or not – subtly hint at the suspect to the witness and guide the identification. These are only some of many ways that eyewitness identification procedures can be overly suggestive.

An experienced attorney will know how to argue that an identification was so suggestive that it should be kept out of court. If an ID is admitted as evidence, your defense attorney should always have extensive experience discrediting eyewitnesses who testify at trial. Thanks to the work of defense attorneys who are educating judges about the dangers of unreliable eyewitness identifications, law enforcement agencies have started to make positive changes. However, until eyewitness identification procedures and laws are reformed, defendants must rely on their attorneys to fight against such evidence.

Duffy Law

Attorney At Duffy Law

Duffy Law has handled many hundreds of criminal matters and thousands of court proceedings, ranging from detention hearings to plea proceedings and trials at all levels of complexity, all of which have made us familiar with many of the law enforcement personnel, prosecutors, judges, courthouse personnel, and unique procedures in each judicial venue.
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