If you have ever watched a crime procedural, you have watched the scene where the potential “perps” are put in a line, and a victim is forced to identify the person who attacked him or her. In most versions, the victim either recognizes the alleged attacker immediately, or states clearly and emphatically that his or her attacker is not there. Very rarely do you see a victim who is unsure about whether or not the perpetrator is in the line.

This may lead you to believe that all eyewitnesses are 100% capable if identifying who harmed them, but this is not true. Eyewitnesses make mistakes. Let's repeat that: eyewitnesses make mistakes. Many times, the person who says, “The defendant is the one who attacked me/ robbed me/ sexually assaulted me/ stole from me” is wrong. Sometimes it is an honest mistake; in other cases, the misidentification may be more insidious.

When do eyewitnesses identify defendants?

The police use different methods to help identify suspects and defendants when a South Carolina crime had been committed. These methods include:

• You've probably seen these on various crime and lawyer shows. At a pretrial lineup, the eyewitness looks at the defendant and several other people. The police then ask the eyewitness if he/she recognizes the person involved in the criminal activity.
• Photo arrays. Here the eyewitnesses look through a group of photos to see if the witness recognizes the person involved in misconduct.
• Voice lineups. Here, the eyewitness tries to identify the person who may be charged with a crime by listening to the voices of everyone in the lineup.
• An onsite identification. A witness may identify someone at the scene of a crime.
• In-court identification. Here, the prosecutor asks the eyewitness to point out the person in the courtroom who was involved in the criminal activity.

It is critical that the identification be fair because often a witness who makes a mistake at a pretrial phase of the case sticks with that mistake through the trial.

Why do mistaken identifications occur?

Identification mistakes are normally categorized as estimate errors or system errors. Estimator errors are beyond the control of the police officer or police investigator. System errors are within the control of the police officials. For example, the police can't control the lighting at the scene of the accident. The police can control the lighting at the police station.

Estimator errors (also called estimator variables)

These factors generally refer to factors like lighting and whether the victim knew the perpetrator before the incident occurred. A few other well-known estimator variables include the race of the alleged perpetrator (if it differs from that victim), whether a weapon was used, or whether there was violence. Eyewitnesses are less reliable when there is a weapon present, because their focus is on the weapon, or when there was an act of violence.

A few questions experienced defense attorneys ask to help determine if estimator variables were present include:

• Were there any visibility issues at the time of incidents? If the event occurred outdoors, were there streetlights or other lights? Does the eyewitness wear glasses? Was there anything that might obstruct the view of the eyewitness? How far away from the defendant was the eyewitness?
• Was the eyewitness under the influence of drugs or alcohol?
• How much time did the eyewitness have to look at the perpetrator?
• As mentioned, was the perpetrator using a weapon? Was the victim under stress at the time of the event?
• Between the incident and the first identification, did the eyewitness read any media accounts of the incident? Did the eyewitness have time to speak with other witnesses or anyone familiar with the alleged criminal activity?

System errors (also called system variables)

These variables involve any suggestive or subtle actions by the police to make the defendant stand out as compared to the other people in the lineup or other people in the photographs. Some of the ways a lineup can be more reliable include:

• Requiring that the eyewitness give a description of the perpetrators before the lineup.
• Conducting the lineup as soon as possible after the event.
• Having a “double-blind” lineup where the officer involved in the lineup doesn't know who the suspect is.
• Separating eyewitnesses during the lineup.
• Including only one suspect in a particular lineup.
• Including people in the lineup who also look like the person the eyewitness described.

Note that there are Supreme Court cases that set forth the criteria for lineups. For example, defendants have a right to counsel at pretrial lineups. Eyewitness identifications that are improperly suggestive and unreliable may violate the due process clause of the US Constitution.

How to make lineups more just

Photo lineups – where an eyewitness is given a series of photos to look at instead of being asked to identify people standing in front of him or her, behind glass – are more common in “real” life. They are also fairer if any information about prior arrests is removed from the photos. According to the University of North Carolina School of Government, photo lineups are fairer:

• If the photos are presented sequentially instead of in a group.
• An independent administrator conducts the photo lineup.
• Before the lineup, the eyewitness is told that the suspect may or may not be in the photos, that the eyewitness is not compelled to make an identification, excluding innocent persons is as important as identifying someone, and that the investigation will continue whether an ID is made or not.

Lineups are more reliable if the officer conducting the lineups makes a visual and audio record of the lineup.

How can a lawyer at the lineup help?

Just being in the same room as the officer conducting the lineup can help deter the officer from being suggestive. A skilled defense lawyer can question the fairness of the makeup of the lineup and make his own observations about everything that makes the lineup improperly suggestive.

Expert witnesses and identification

The judge may permit a lawyer to introduce a witness who is an expert on identification issues, including the reasons why a witness who has a gun in his/her face or is stressed about the possibility of violence. Normally, the expert witness cannot testify whether a specific eyewitness is reliable. The expert witness may be allowed to testify about research studies involving identification.

An expert witness may be used in other ways. For example, if an eyewitness describes someone by the size and shape of the alleged perpetrator's head, an anthropologist may be able to testify that the defendant's head does not match that description. Or, a psychologist or scientist may be called to speak about the unreliability of eyewitness identification in general, pointing to studies about false memories or the impact of an in-court identification on a jury, even when that identification is wrong.

At Holland Law, we use every legal and factual argument possible to help you obtain a dismissal of the charges, an acquittal, or a negotiated plea bargain. Founder Tom Holland is skilled at questioning eyewitnesses and all the witnesses who testify against you. He fights to suppress evidence that is improperly obtained and to assert your Constitutional rights. Our firm represents criminal defendants in York, Lancaster, and Chester Counties. Call today to make an appointment in our Fort Mill office on Gold Hill Road, or in our Rock Hill office on Oakland Avenue at 803-219-2630. You can also reach us through our contact page.