How do criminal defense attorneys challenge identification procedures?

Eyewitness identifications play a crucial role in criminal prosecutions. More than 70% of wrongful convictions result from mistaken eyewitness identifications. Providing an effective defense requires challenging unreliable identification procedures.

Problems with eyewitness identifications

Human memory is susceptible to suggestion, bias, and error. Yet many people place great confidence in eyewitness testimony. This misplaced confidence in eyewitness reliability has led to countless wrongful convictions. Some factors that undermine eyewitness identifications include:

1. Witnessing a crime is stressful. High stress impairs cognitive functioning and memory accuracy.
2. When a visible weapon is present, witnesses tend to focus on the weapon instead of the perpetrator’s face.
3. Witnesses are less accurate when identifying perpetrators of a different race.
4. Post-event questioning influences the witness’ memory of what occurred.
5. When a witness identifies an innocent person because they look familiar from another context.
6. Lineup procedures that point the witness towards a particular suspect.
7. Multiple identification procedures reinforce erroneous choices.
8. Memory fades rapidly. Delays between the crime and identification amplify errors.
9. Witnesses who receive post-identification feedback become artificially confident in the accuracy of their choice.

Legal standards governing eyewitness identifications

The Constitution protects criminal suspects from unduly suggestive identification techniques that could give rise to misidentification. Unnecessarily suggestive procedures may be suppressed under the Due Process Clauses of the 5th and 14th Amendments. There are two legal tests governing the admissibility of eyewitness identifications:

1. System Variable Test – this examines the identification procedure itself to determine if police utilized suggestive tactics. Suggestive procedures include show-ups, where a lone suspect confronts the witness; poorly constructed lineups where the suspect stands out; or police feedback confirming the witness’ choice.
2. Reliability Test – if the procedure was suggestive, courts then weigh five “reliability factors” to decide if the identification still contains sufficient indicia of reliability to be admissible. These factors include the witness’ opportunity to view the crime, degree of attention, accuracy of prior description, level of certainty, and time between crime and identification.

Discrediting eyewitness testimony at trial

If identification cannot be excluded before trial, top criminal lawyers in Brampton will aggressively cross-examine eyewitnesses and scrutinize identification procedures to discredit unreliable testimony. Trial strategies include:

1. Extensive cross-examination. Questioning the witness’ opportunity to observe the crime, recall ability, and potential bias or interest in the case outcome.
2. Expert testimony. Have an eyewitness ID expert educate the jury on factors affecting perception and memory and problems with police procedures.
3. Point out inconsistencies. Compare the witness’ prior statements and descriptions with their trial testimony and the defendant’s appearance.
4. Use of mug books. Have witnesses review mug books shown before the defendant is charged to highlight similarities amongst choices.
5. Challenge confidence inflation. Point out artificial confidence from repeated identification procedures and police confirmation.
6. Reenact lighting conditions. Demonstrate poor lighting and obstructions to vision through crime scene reenactments.
7. Introduce alternative suspects. Develop factual bases for another potential perpetrator to account for eyewitness errors.
8. Ask the judge to give the jury special instructions. Request the model jury instruction detailing the hazards of eyewitness identifications for criminal cases.