Prosecutors obtain many convictions using the testimony of eyewitnesses to a crime. The problem with relying on eyewitness testimony to obtain a conviction is that it can be terribly inaccurate and unreliable. Eyewitness misidentification was a problem in 70% of all wrongful convictions that were later proven to be wrongful due to DNA evidence.
Eyewitnesses who misidentify a person are typically not people who are doing it maliciously. The majority of eyewitnesses to a crime who misidentify a suspect aren’t lying about what they saw; they are simply mistaken. They hold a true belief that the person they are identifying is the perpetrator of the crime. However, because of the way people’s brains remember information, they have made a mistake.
A mistaken eyewitness’ conviction that they are correct in their identification makes it even more difficult to defend against their testimony. Jurors see how convinced the eyewitness seems, and want to believe them. This is especially true when the eyewitness has no motive or reason to lie about what they saw.
So, how does a criminal defense lawyer challenge eyewitness testimony?
Police often use lineups to have an eyewitness identify a suspect. However, if done improperly, lineups can be highly suggestive. For example, if the witness says that the crime was committed by a six-foot-tall Hispanic man, and in the lineup is one six-foot-tall Hispanic man, three short white men, and two black men, that’s awfully suggestive.
There are similar issues with photo lineups. In order to correctly perform a photo array lineup, the witness must first be told that the suspect may not be present among the photos. Any filler photographs must match the witness’ physical description of the perpetrator. It also helps to improve accuracy if the administrator of the lineup does not know the identity of the suspect. Further, sequential lineups (showing one photograph after the other) tend to be more accurate than a simultaneous lineup.
If these and other guidelines are not followed, then the lawyer for the defendant may want to hire an expert to explain to the jurors the problems with the lineup and why the lineup procedure made the identification scientifically unreliable.
In-court identifications are highly suggestive. If an eyewitness is identifying someone in court for the first time, there is little to no reliability to the identification. Imagine how that goes: “Your honor, the person who robbed the bank is that man over there, in the orange jumpsuit with the handcuffs on.” Of course, the witness identifies the person that the police have apprehended as the perpetrator.
Lawyers should avoid allowing an in-court identification procedure to occur, because it is so unreliable. They should take steps to have the witness attempt an identification through a live lineup or a photo array, done properly, and allowing the defendant to be represented at the lineup.
If you have been falsely accused due to misidentification by an eyewitness, you should hire a criminal lawyer who has experience in defending against eyewitness misidentifications.