Strategies in Defending Eyewitness Identification Cases
| Jurisdiction | United States,Federal |
| Citation | Vol. 17 No. 2 Pg. 273 |
| Pages | 273 |
| Publication year | 1988 |
1988, February, Pg. 273. Strategies in Defending Eyewitness Identification Cases
Sooner or later, most defense attorneys are faced with an eyewitness identification case. The client insists that he or she is not guilty, despite direct identification testimony implicating the client. Plea bargaining is usually not a viable alternative; it is understandably difficult to recommend a guilty plea, even to reduced charges, to a person who consistently proclaims innocence.
These eyewitness identification cases pose particular problems for the criminal defense attorney. For example, when counsel truly believes that a client is innocent, trial can be especially troublesome. The attorney is faced with the realization that if the case is lost, a truly blameless person will suffer. This sets mistaken identification cases distinctly apart from cases involving affirmative defenses such as justification or consent where, if a conviction results, the defense attorney can at least take comfort in the fact that the client was the person involved in the allegedly criminal activity.
Similarly, in contrast with cases involving Fourth or Fifth Amendment suppression issues, where the focus is on the protection and preservation of constitutional guarantees, eyewitness identification cases cut right to the question of guilt and innocence. A wrongful conviction results in manifest injustice, not just the "incidental" dilution of constitutional rights. In these cases the system itself, not just the accused, is on trial. The stakes are great and the consequences are considerable. These realizations make the defense of eyewitness cases particularly frustrating, since it has been established beyond refute that eyewitness identification represents one of the least reliable varieties of evidence which, ironically, is the type of testimony most relied upon by juries in their determination of an accused's guilt.(fn1)
Miscarriages of justice often occur through well-meaning but mistaken identification testimony which is believed by jurors.(fn2) This is why the situation of one accused of crime through eyewitness testimony is "perilous": recollection is influenced by even the most subtle types of suggestion and, once an identification is made, a witness is unlikely later to recant, regardless of intervening circumstances.(fn3)
During the past century, the vagaries of eyewitness identification have been well-documented in both case law and commentary, providing the practitioner with a wealth of information upon which to draw.(fn4) Indeed, the unreliability of eyewitness accounts was noted by the Greek historian Thucydides more than two millennia ago, making it apparent that this is not just a recent sociological phenomenon.(fn5)
The perplexing problem posed for the present-day practitioner, however, is putting to practical and effective use scientific and legal knowledge of more recent origin. This would include pretrial investigation; motions directed at suppressing pretrial and trial identifications; trial strategies, including techniques of argument; cross-examination; the presentation of defense evidence, such as expert testimony; instructions; and, finally, appellate remedies in the event of conviction.
This article reviews applicable case law, and discusses pretrial and trial strategies which may be useful in defending eyewitness identification cases and in obtaining appellate review.
In eyewitness identification cases, the defense must try to discredit the identification or at least plant and nurture the seeds of reasonable doubt in the minds of the jurors. Therefore, pretrial investigation is crucial. Ordinarily, the practitioner will have police reports reflecting contemporaneous descriptions given by the witnesses, which may or may not include evidence of pretrial identifications made through photographs or physical lineups. Composite drawings may also exist. These materials can be used to obtain additional statements and descriptions by the witnesses, which may differ from the original descriptions. It is understandably difficult for an eyewitness to disregard the actual physical appearance of the defendant in describing the perpetrator of the crime; the trick is to focus the witness' attention on the original circumstances, not on the accused as he or she appears in court.
It is therefore to the advantage of the defense to have obtained descriptive
Pretrial motions are also integral to the defense of eyewitness identification cases. Since courtroom confrontations can be unquestionably suggestive, the defense attorney may wish to consider several options prior to exposing the client to direct identification efforts by the witnesses. One alternative is to file a motion for a prehearings lineup, in which the client is shielded by the appearance of four or five other individuals who hopefully are either similar to the accused or to the original descriptions given of the perpetrator. However, this strategy can backfire if the defendant is selected out of the lineup.
A similar pretrial strategy is to move for exclusion of the accused from all hearings prior to the suppression hearing on the question of eyewitness identification. This way, the defense attorney may be able to prevent the client from being identified at bond or preliminary hearings, which will protect against the inevitable taint of courtroom identification. Once a witness identifies a person in open court as the perpetrator of an offense, the witness likely will persist in the identification and may become even more assured about the accuracy of the identification than before.
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