Eyewitness Identification Issues
In a landmark 1950 movie made by the Japanese filmmaker Akira Kurosawa titled Rashomon, three witnesses to a murder offer contradictory versions of what happened. To this day, attorneys and judges speak of the “Rashomon Effect” when confronted with contradictory evidence from witnesses. This begs the question, “Can we really trust so-called eyewitness testimony?”
In fact, here in the United States, since the introduction of DNA profiling, nearly 350 convicted persons have had their verdicts overturned based on the forensic analysis of DNA from the crime scene. Of those exonerated, nearly 70 percent were convicted based largely on the testimony of others.
If you’ve been charged with a crime and are facing a trial, witnesses may well play a crucial role, either for the prosecution, for your defense, or for both. If a witness is testifying against you, what can you and your criminal defense team do to challenge that testimony? Likewise, if you’re bringing forth a witness to your defense, how can you be sure that person’s testimony won’t be challenged or even torn to shreds by the prosecution?
If you’re facing a criminal charge in or around Tulsa, Oklahoma, contact the criminal defense attorneys at Military Law Group. We have extensive courtroom experience and can challenge the testimony of others and the evidence against you. We’ll also prepare witnesses in your defense on how to handle the pressure of cross-examination.
Though our law firm’s title suggests we handle only cases involving military personnel, we actually take on cases for all individuals facing criminal charges. In addition to Tulsa, we also proudly represent clients throughout the Tulsa metro area, including Rogers County, Creek County, and the Creek and Cherokee Nations.
The Role of Witnesses
Obviously, in addition to a “smoking gun,” a piece of evidence can lead police and prosecutors to bring a criminal charge. A trial hinges on the evidence presented, and for someone to be convicted of a crime, the evidence presented must be seen as rising to the high legal standard of “beyond a reasonable doubt.” Witnesses will likely play a prominent part in the proceedings.
As with any piece of evidence, the job of the defense attorney is to cast doubt on any statements made by prosecution witnesses and to prepare witnesses for the defense to endure any tactics used by the prosecution to similarly cast doubt on their testimony.
To cite just one possible scenario of witness bias: it is sometimes – and sometimes too often – that a witness will have a revenge motive. In a police station line-up, for instance, a spurned lover might point their finger at one of the persons standing against the wall to “get even” for what happened to them. Worse, the police might even make suggestive statements such as “What about him?”, thus singling out one individual.
Common Reasons for Eyewitness Error
Even absent a revenge motive or a personal animus, neutral eyewitnesses who don’t know the defendant or anyone else involved in the crime can be subject to error. Here are some of the common causes:
STRESS: When witnessing a crime, especially a violent one, eyewitnesses often respond with stress and anxiety, which can make it more difficult for them to identify the culprit. The stress they feel can cloud what they witness.
THE PRESENCE OF A WEAPON: Say a couple of people observe a robbery or mugging on a city street, and the culprit pulls a weapon. All eyes will focus on the weapon, making identification of the culprit more difficult.
CONFIDENCE LEVEL: Sometimes witnesses will come across with a high level of confidence in giving their testimony. However, confident witnesses have the same or higher error rates than those who appear uncertain or nervous.
CROSS-RACIAL IDENTIFICATION: Eyewitnesses are less accurate when asked to identify a culprit of a different race. And this is not just a white-black or black-white issue, but one that cuts across all races.
PRESSURE TO IDENTIFY: Eyewitnesses are prone to make mistakes when they feel pressure to make an identification, even if they are constantly reassured to take their time and told they are not required to make a decision.
AFTER-THE-FACT INFLUENCE: Eyewitnesses who discuss with one another what they saw can suddenly change their tune to agree with others.
TRANSFERENCE: Eyewitnesses who have seen the defendant in other situations may transfer their opinion from the previous encounter that ends up clouding their judgment.
MULTIPLE PERPETRATORS: In crimes involving more than one bad actor, identification difficulty is increased.
The Line-Up Conundrum
Identification errors in police line-ups are somewhat notorious. As mentioned earlier, revenge motives may be present with one witness, and police suggestions or interference can play a huge role. But the physical arrangement of conducting the line-up identification process has come into question as well.
For instance, studies have shown that a sequential line-up rather than a simultaneous line-up often yields more unbiased results. A sequential line-up means each person, or each person’s picture, is introduced in sequence rather than all at once (simultaneous). Better results are also obtained when the line-up administrator is “blinded,” that is, is neutral and has no idea who the suspect is among those in the line-up.
Challenging Witness Testimony
All evidence introduced in a trial can be challenged by the defense team to the greatest extent possible when warranted. When it comes to eyewitness testimony, the defense can challenge that person based on the observation that they’ve changed their story since they first provided testimony pre-trial. The defense can cite their inconsistencies.
Another route is to call forth – Rashomon style – witnesses with contradictory testimony. The defense can also challenge the witness based on CCTV footage or GPS tracking that shows they were nowhere near where they said they were. The defense can also focus on the witness’s character by pointing out events in their past that cast doubt on what they say. Perhaps they have a prior conviction or criminal charge themselves.
Depend on Experienced Representation
If you’re facing a criminal charge, you’re going to want to enlist the legal guidance, counsel, and representation of an experienced criminal defense attorney. Don’t leave your fate in the hands of an appointed public defender, whose caseload may be so busy that he or she cannot spend adequate time developing your defense.
If you’re in the Tulsa area or in nearby communities and you’re up against a criminal charge, contact us immediately at Military Law Group. Let’s examine the facts of your case and develop an aggressive and strong strategy to obtain the best result possible.