Difference between revisions of "Eyewitness Misidentification"

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* '''Records:''' Investigators should maintain a clear record of every lineup, not just the one that resulted in identification of a suspect.  Additionally, identification should be video recorded whenever possible.  Recording benefits both the defense and the prosecution.  In the event of misconduct, the defense has visual evidence.  On the other hand, the prosecution may show the jury that the procedures were legitimate and aboveboard.  
 
* '''Records:''' Investigators should maintain a clear record of every lineup, not just the one that resulted in identification of a suspect.  Additionally, identification should be video recorded whenever possible.  Recording benefits both the defense and the prosecution.  In the event of misconduct, the defense has visual evidence.  On the other hand, the prosecution may show the jury that the procedures were legitimate and aboveboard.  
  
== Practical Considerations for the Defender ==
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== Practical Considerations ==
  
 
'''Engaging an Expert Witness:''' Expert Testimony can be used to discredit an eyewitness identification.
 
'''Engaging an Expert Witness:''' Expert Testimony can be used to discredit an eyewitness identification.
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(''Neil v. Biggers'' 409 U.S. 188, 199 (1972)).  
 
(''Neil v. Biggers'' 409 U.S. 188, 199 (1972)).  
  
Participation of the Client: In the United States, there are no legal grounds for failing to participate in a lineup, especially if the client is already in custody. Since the client's participation in a lineup is non-testimonial, there can be no valid claim of privilege on the basis of the right against self-incrimination.
 
  
 
'''Client Preparation:''' If client is asked to participate in a lineup, it is important to brief him/her to cooperate and avoid any obnoxious behavior. Lack of cooperation can be used against the client at trial.  The Defender should research how lineups are conducted in the locality and explain the process to the client.  Also, should advise his/her client not to speak to other members of the lineup.   
 
'''Client Preparation:''' If client is asked to participate in a lineup, it is important to brief him/her to cooperate and avoid any obnoxious behavior. Lack of cooperation can be used against the client at trial.  The Defender should research how lineups are conducted in the locality and explain the process to the client.  Also, should advise his/her client not to speak to other members of the lineup.   
  
'''Lineup Attendance:''' Defender should attend the lineup whenever possible.  Read the National Institute of Justice's report entitled "Eyewitness Evidence - A Guide for Law Enforcement" in order to gain a better understanding of the fair way to conduct lineups. The action of the defender at the lineup is dependent on what the defender anticipates in court. In general, the role of the defender should be a passive one, but the level of involvement depends on many variables such as: the potential culpability of the client, the defender's knowledge about the trial/investigation and knowledge about the police.  
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'''Lineup Attendance:''' Defender should attend the lineup whenever possible.  The National Institute of Justice published a report entitled ''Eyewitness Evidence - A Guide for Law Enforcement'' outlining fair lineup practices. In general, the defender should remain passive during the lineup.  If the defender determines that some action is necessary, the defender should be authoritative, yet deferential. 
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*''Passive Role:'' Document all procedures for later use in court. Ideally, the defender should carry a small video camera and be accompanied by a unbiased third party, who will act as a "prover" in court.
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*''Active Role:'' If the defender determines that it is in the client's best interest to interfere, the defender should file a motion for best practices.  
  
- Passive Role: If the police use suggestive procedures, it may be best to remain passive but document the procedures in order to discredit the witness in court. Ideally, the defender should carry a small video camera and record what happens during the lineup. The defender should also be accompanied by a third party, a relatively unbiased third party "prover."
 
- Active Role: If the defender determines that it's in the client's best interest to make constructive suggestions concerning the lineup, the defender should file a motion for best practices in line-ups and eye-witness interviews. If the defender is in a situation where the defendants' right to counsel has been accrued, the defender can make the argument that the right to counsel includes the right to be present at a pre-line up briefing and post line-up debriefing.
 
  
Preparing Cross-Examination of Eyewitness Evidence: Questions that should be asked of the defense in preparation:
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== Trial Tips ==
- What elements on the accuracy of the identification does the attorney want to present to the jury?
 
- What specific jury instructions will the trial judge give in relation on identification?
 
 
- Is there any documentation of the identification process? This includes document from formal/informal discovery, about the witness, the perpetrator, the client, the occurrence of the crime, as well as, show-ups, photo spreads and lineups with any instructions delivered to the eyewitness by law enforcement officers.
 
- What information has been published in live witness or scholarly research about factors that can positively or negatively affect the eyewitness identification?
 
  
Opening Statement:
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''Cross-Examination of Eyewitness Evidence:'' Issues defense should explore during trial preparation:  
If the defender plans to attack the testimony of the eyewitness, the defender should claim in the opening statement that the eyewitness is either mistaken or lying. In most cases, the defender should claim that the eyewitness is mistaken. In the case that the defender wants to claim that the witness has lied, the defender should be prepared to offer proof of the motive.
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*Which identification elements do you (the attorney) want to present to the jury? 
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*What jury instructions do you want given to the jury regarding identification?
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*Will you rely on cross-examination of the eyewitness to establish a misidentification claim? Will you introduce expert evidence on factors that influence  identification? Or both?
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*Was the identification process documented? And do you have access to recordings/documents?
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*What extraneous research will positively or negatively affect the impact of the eyewitness identification?
  
Jury Instructions:  
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''Opening Statement:''
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The opening statement is the defense's first opportunity to argue in a "you will hear today" manner for eyewitness misidentification.  If the defender plans to attack the legitimacy of the identification, the defender should claim the eyewitness is either mistaken or lying. The defense should be prepared to present evidence regarding the witness' motive, if claiming the witness is lying.  In the majority of cases, the defender should claim that the eyewitness is simply mistaken and be able to demonstrate discrepancies.
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''Jury Instructions:''
 
The defenders should ask for instructions cautioning the jurors of the vagaries of eyewitness misidentification. The defender should attempt to write his/her own instruction to make sure that the tone is fair. In the case that the trial judge refuses to give the defendants' required instructions, ask the judge to give one. If the defender feels that any part of the judge's instruction is unfair, the defender should object to the aspects that are unfair.  
 
The defenders should ask for instructions cautioning the jurors of the vagaries of eyewitness misidentification. The defender should attempt to write his/her own instruction to make sure that the tone is fair. In the case that the trial judge refuses to give the defendants' required instructions, ask the judge to give one. If the defender feels that any part of the judge's instruction is unfair, the defender should object to the aspects that are unfair.  
  

Revision as of 16:18, 31 May 2010