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 | + | == 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)). | ||
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'''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. | + | '''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. |
+ | *''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. | ||
+ | *''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. | ||
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− | + | == Trial Tips == | |
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− | + | ''Cross-Examination of Eyewitness Evidence:'' Issues defense should explore during trial preparation: | |
− | + | *Which identification elements do you (the attorney) want to present to the jury? | |
+ | *What jury instructions do you want given to the jury regarding identification? | ||
+ | *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? | ||
+ | *Was the identification process documented? And do you have access to recordings/documents? | ||
+ | *What extraneous research will positively or negatively affect the impact of the eyewitness identification? | ||
− | Jury Instructions: | + | ''Opening Statement:'' |
+ | 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. | ||