Attacking the identification testimony at trial

The witness’s credibility

The defense of misidentification alleges that the witness made a mistake rather than a deliberately false identification. Nevertheless, anything that makes the witness less believable and less attractive to the jury will diminish the jury’s sympathy with the witness and its likelihood of giving him or her the benefit of the doubt.

Therefore, a criminal defense attorney should not hesitate to point out the witness’s criminal history or prior inconsistent statements.

Inaccuracies in the witness’s description

When cross-examining the victim/eyewitness, a criminal defense attorney can bring out any inaccuracies in the description that the witness gave to the police after the incident. This description will be written in the police report and was probably given soon after the event. All the factors the prosecution cites in favor of believing the victim/eyewitness—a desire to see the culprit caught, the focus that the stress of the event brought to the victim—also suggest that any description the victim gave to the police would be as accurate as possible.

Here is an example of a line of questions designed to emphasize inaccuracies in the witness’s description:

  • You called the police on your cell phone as soon as the robber turned the corner?
  • And the police arrived within five minutes?
  • You called them because you wanted to see the robber caught?
  • Officer Smith asked you to describe the robber?
  • You gave as accurate and complete a description as you could so that the robber would be caught?
  • You described the robber as African-American?
  • You didn’t say whether his complexion was dark, fair or somewhere in between?
  • Officer Smith did ask you to describe the robber’s complexion, didn’t he?
  • If you had noticed the robber’s complexion, you would have told Officer Smith, right?
  • But you didn’t?
  • Officer Smith left you with his card?
  • You never called him to add more information about the robber’s appearance than you gave on the night of the robbery?
  • You met with Officer Smith to view some photographs on June 1, just one week after the robbery?
  • He pulled out a big book for you to look through?
  • Before he opened the book, you didn’t say, “Just show me photos of dark-skinned African-American men,” did you?
  • Look at my client. Would you agree that his complexion is noticeably darker than most African-American men?
  • Well, he’s noticeably darker than any African-American individuals you see in this courtroom, isn’t he?
  • And you never described the robber to the police as a noticeably dark in skin complexion?

The witness’s certainty

In most cases, a criminal attorney should avoid questioning the eyewitness about how certain he or she is about the identification. By the time of trial, the witness is invested in the identification and will express it with certainty. Questioning on this point will only emphasize the certainty and jurors mistakenly tend to defer to a witness’s statement of certainty. The exception is when the attorney has a helpful statement in a report or prior testimony in which the witness expressed uncertainty.

The duration of the event

A victim should be questioned on the duration of the event with great caution if at all. Studies show that witnesses commonly overestimate the duration of stressful events, like a crime. An event that took two seconds becomes twenty, enabling the prosecutor to tick off twenty-seconds of silence to the jury in summation to show how long a time that is.

A skilled defense attorney might try to back into the duration issue by questioning the victim about what did not happen during the crime. The attorney might be able to exploit a witness’s admission that he or she did not notice a particular feature because of the event’s brevity.

Here is an example of how such a line of questioning would go:

  • The robber told you to give him your money?
  • You opened your purse to get the money out, right?
  • He snatched the whole purse from you?
  • He didn’t give you time to take out your money?
  • That purse was a favorite of yours, wasn’t it?
  • Losing the purse may have hurt more than losing the money?
  • You didn’t get time to say to him, “Hey, I’ll take the money out?”
  • Is it fair to say that you didn’t get time to say anything before he snatched the purse?
  • And he didn’t take time to look through the purse, did he?
  • Just took off and ran, right?
  • As you said on direct, you didn’t even have time to notice if he had any facial hair, right?
  • When asked for the money, his face could not have been more than two feet from yours?
  • And when he snatched the purse, he got even closer?
  • If you had a good look at his face from that close, you would have noticed if he had a beard?
  • Or a mustache?