Schwartz & Powell

Eyewitness ID: Who’s on First, So Who’s on Second?

by Steven D. Powell Attorney at Law

The old Abbot and Costello “Who’s on First . . .” comedy bit is a riot. Regrettably it is all too true for Ventura criminal defense lawyers who must fight wrongful identification testimony and citizens wrongfully accused of and then convicted of crimes they didn’t commit. Any case depending on eyewitness identification depends on the witnesses’ ability to perceive, to recollect and to relate his or her observations accurately; and from time to time the examination of such witnesses does sound a bit like the Abbot and Costello routine. But it is not so funny when one’s life or liberty or fortune hangs in the balance. This type of evidence is notoriously unreliable. Any experienced Ventura lawyer knows this.

The law and instructions given to jurors on how to evaluate eyewitness identifications warns jurors of such evidence’s frailty. For example, cross-racial identifications are empirically often inaccurate.

And the jury is so instructed as a matter of law before deliberations. The defense can always call an ID Expert Witness who can analyze the specific identification in the case before the jury and explain to the jurors the problem with the eyewitness identification. Or the Ventura criminal defense attorney can simply argue the sufficiency of the proof of identity based on the many factors described in the judge’s instruction to the jury.

The criminal defense attorney can make a motion for a live lineup and then be present to assess the lineup’s fairness. But this is seldom effective or wise after the eyewitness has already picked the suspect from a photographic lineup or from an “in field show up,” in which the police ask a witness at the scene if the one fellow hogtied in the back of the patrol car is the perpetrator. Photo lineup identifications and “show up” identifications are not necessarily prohibited evidence in court and do not necessarily render the subsequent in-court identification inadmissible.

A motion to suppress evidence, the identification, is allowed when police misconduct taints an identification. When the police officer, for example, on occasions few and far between,  falsely or even correctly tells the witness the guy in the backseat of the patrol car, the suspect, just confessed to the officer, the witnesses' confirmatory identification probably will be excluded from evidence. The “six pack” of pictures forming the basis for the photo identification must not unduly emphasize the suspect or defendant’s likeness by, for example, consisting of five pictures of Whites and one picture of a Latino when the suspect is Latino.

But a Ventura criminal lawyer seldom encounters and is able to prove such obvious taint. This isn’t Chicago after all! I have both as a former Ventura County Deputy District Attorney and now a Ventura criminal defense lawyer attended many live lineups and I have not seen one composed of five individuals bearing no resemblance at all to the sixth person in the lineup. In a dirty line up, however, when the witness picks number 6 as the perpetrator, nobody’s surprised except for number six who was just out buying a quart of milk when hogtied and displayed like a trophy to a witness eager to see the criminal captured.

There are a host of ways false identifications arise. In some cases the police or prosecution has engaged in no suggestive conduct at all but others have. Private citizens have compromised the integrity of the identification either by planting false memories in a suggestible witness or by showing the witness pictures of the so called perpetrator. Television broadcasts take it upon themselves, as do newspapers, to show “artist renderings” of suspects; when witnesses see these before identifying the defendant in lineup or in court the Supreme Court says the polluted ID is constitutionally permissible and doesn’t violate one’s right to a fair trial even though everybody knows in court eyewitness identification can convict an innocent person of a crime neither contemplated nor committed.

The Court says analysis of lousy eyewitness identification in the absence of State misconduct is for the jury, not the judge by way of a motion to suppress identification testimony. I think the Supreme Court is wrong in allowing such evidence to go to a jury eager to convict. I think the trial court should exercise its obligation to screen evidence to make sure it is reliable, especially when it comes to bombshell eyewitness ID testimony. When a defendant is charged with crimes such as murder, rape, burglary, robbery and other crimes where uncorroborated eyewitness ID testimony is the only evidence connecting the defendant to commission of the crime, the trial courts should not just sit there like potted plants and allow the prosecution to introduce suspect eyewitness identification evidence.

That’s why you need attorneys defending you or a loved one accused by eyewitness testimony of committing any crime. Schwartz & Powell, Ventura criminal lawyers, know how to defend against erroneous eyewitness identification. We have won any number of cases based on misidentification issues. While I cannot say this necessarily means we can win your or a loved one’s case involving misidentification, I’d suggest you consider our firm if you are serious about obtaining an acquittal. We have been there and we know. Experience matters.





The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.