Eye-Witness Identification

Even in my former life as a police officer, I rarely trusted eye-witness identifications.  I don’t have anything against the process per se, but I have found that in a stressful situation, the average person’s mind freezes and misses about 90% of what is going on, and then fills in the gaps for him/her later.  Those gaps are filled in by anything or anyone.  I can’t tell you how many times I found myself looking for a short and tall male, with black and blond hair, wearing a black/green hoody/t-shirt and shorts/long jeans, last seen heading south/north.  As police officers, we were trained to immediately separate witnesses.  This is mainly because they like to talk to each other about what happened.  When 1 person misses something that happened, the blanks are filled in by what everyone else is saying.  Also, witnesses who talk can change each other’s minds about what actually happened.  Long story short, eye-witness identification can be very unreliable.

The courts have also put a lot of restrictions on eye-witness identification.  They say that the police officers cannot be overly suggestive.  When there is a witness that identified my client, the first question I always ask is, “Does that person know you outside of this event?”  One reason for this is that, if the witness does not know my client, there is a stronger argument for attacking the identification because much of it, statistically, is going to be inaccurate.  Did the police officer separate the witnesses as soon as he got to the scene?  Did the police officer suggest an answer to a witness who couldn’t remember what the alleged suspect was wearing?  Did the police officer, when showing a photograph to the witness, only provide one photograph and ask the witness if that was the person who committed the alleged crime?  Did the police officer show multiple photographs, but my client’s photo was different than all the others or the officer held his finger next to my client’s photo while the witness was looking at the photo array?  If I can show the identification was tainted, any successive identification, unless it can be shown that it came from an independent source, is also suppressed.

As a police officer, I never relied completely on what a witness said.  If it couldn’t be corroborated by any other form of evidence, then it didn’t happen.  To the other police officers out there, I recommend the same thing.  To the defense attorneys who come across a case that rests solely on eye-witness identification, I say attack that identification.  Statistics are in your favor.  Make the police do their jobs properly.