Attacking Eyewitness Identification

A defendant may attack eyewitness testimony during trial. There are numerous issues and problems that arise when dealing with eyewitness identification testimony. One of the largest issues involves the reliability of the eyewitness. The defendant may attack the eyewitness identification testimony by cross-examination, by way of a jury instruction, or by way of closing argument to the jury.

Cross-Examination

Eyewitness identification testimony is always subject to attack. The most common way to attack such testimony is through cross-examination of the eyewitness. Some issues that may be addressed during cross-examination include:

Conditions of the identification procedure.
Conditions that were present when the witness observed the criminal.
Reliability of the witness.
Time between the observation of the defendant committing the crime and the identification of the defendant as the perpetrator.

Expert Witness

The defendant may also present expert testimony regarding the reliability of a witness's identification of the defendant. The expert may testify as to certain psychological, physical or mental issues that may have compromised the witness's ability to properly identify the defendant. The expert may also testify as to the results of numerous studies that reveal the potential weakness in human perception.

Jury Instructions

If a questionable identification exists, the defendant may want to request that a certain jury instruction be given to the jury. The defendant is entitled to a jury instruction that would direct the jury's attention to evidence that may cast doubt on the defendant's guilt. The defendant may either offer a special jury instruction to be given or may request that a standard jury instruction be given. The trial court is not required to accept a proposed special instruction. However, if identification is at issue, the trial court is required to give a jury instruction that focuses the jury's attention on the identification issue.

Failure to Give a Jury Instruction Regarding the Potential Identification Issue

Although error may result if the trial court fails to give the jury an instruction, if requested on the issue of identification, the error may not be prejudicial in nature. Most appellate courts agree that the trial court is not required to give a sua sponte or self-directed instruction on the issue of identification.

Closing Arguments

The defendant may hit the issue of the reliability of all witness identifications hard during closing argument. The defendant may also focus on the particular witness's identification of him and the lack of its reliability.