Eyewitness identification is a kind of evidence fraught with error. Oftentimes, the public learns of mistaken IDs well after the fact of a conviction. But that doesn’t mean that defense attorneys can’t try to ensure that identification procedures are up to par and challenge any identification in court. (For more on the identification process and ways to handle it, both before and after the fact, see Nolo's page for Eyewitness Identification issues.)
Factors Indicating Unfairness
Judges are likely to decide that lineups are unfair or impermissibly suggestive in the following types of circumstances:
- The suspect is the only person in the lineup who closely resembles the eyewitnesses’ description.
- The police drop not-so-subtle hints as to whom the eyewitnesses should identify (for example, by handcuffing the suspect while the other lineup participants’ hands are free).
- The police allow eyewitnesses to confer with each other before or during the lineup.
- The police give verbal cues to an eyewitness along the lines of “Pay particular attention to number three.”
Events occurring before a lineup starts can also render it unfair. For example, assume that while the eyewitnesses are waiting outside the room where the lineup will take place, the police “accidentally” walk the handcuffed suspect past them.
Whether problems like these are intentional or accidental, they taint the resulting identifications. When they occur, judges may prevent eyewitnesses from repeating their lineup identifications at trial, or, in egregious cases, from even identifying the defendant at all.
Ways Defense Lawyers Can Help
A defense lawyer’s presence is likely to deter impermissibly suggestive police behavior. In addition, a defense lawyer may:
Object to unfair elements and suggest fairer ones. For example, a lawyer who notices eyewitnesses starting to confer with each other might ask the police officers to separate them.
Make a record of unfair aspects for use in a later court challenge to the lineup identifications. For example, the lawyer may take a photo of the eyewitnesses conferring with each other or note that the angle of the lighting in the lineup room made the defendant stand out.
Observe the eyewitnesses’ demeanor and attitudes. The lawyer might get insights into how convincing the eyewitnesses might be at trial and how confident they are in their identifications. (Eyewitnesses who are uncertain at the time of a lineup sometimes retract their identifications before trial.)
Observe conversations that the eyewitnesses have with the police or a prosecutor. Ostensibly, the attorney’s task is to ensure that the eyewitnesses aren’t improperly coached. But the attorney can also be alert to anything witnesses say that might detract from the believability of their identifications. For example, an eyewitness may tell a police officer, “I’m as nervous now as during the holdup. It’s really hard for me to pay attention.” That’s the kind of statement that an attorney can mention to a prosecutor during plea-bargaining discussions, because it indicates that the witness’s identification may be mistaken. And if the case goes to trial, the defense attorney can cross-examine the witness as follows:
Question: You were as nervous at the lineup as during the holdup, correct?
Answer: I guess so, yes.
Question: And that nervousness made it hard for you to pay attention to what was happening, right?
Answer: I wouldn’t say that.
Question: Well, at the lineup, didn’t you tell Officer Meachem that you were so nervous that it was hard for you to pay attention?
Answer: Yes, I suppose I did say that.
Interview the eyewitnesses. While defense attorneys are typically observers rather than active participants, they may have an opportunity to question the eyewitnesses. Although victims and witnesses have no obligation to agree to an interview, the presence of police officers sometimes makes them comfortable talking to a defense attorney (especially if they hope that they can convince the lawyer that the suspect should plead guilty so they don’t have to come back to court). Through questioning, for example, the attorney may gain helpful information about a witness's ability to observe the culprit.
Rely on a Lawyer
Consult an experienced lawyer if you have been or might be the subject of a lineup. Your attorney can determine whether you have a viable challenge to any identification. If the judge admits evidence of the pretrial identification, your lawyer may be able to formulate an approach for causing the jury to doubt the witness.