Skeptical of Mistaken Identification Cases? Look Here (Carefully)
By Don Murray, partner in Shalley and Murray
It is easy to be cynical when hearing claims of mistaken identification. "Oh please," you may say, "If I were robbed by someone at gun point, I would never forget the face." Imagine your thoughts upon seeing the criminal court complaint below. This is a copy of an honest to goodness complaint from a real case. My client was picked out of a lineup by the victim of an armed robbery and then arrested for that robbery. Have a look at the complaint below, and try to imagine what you would have thought about my client had you simply seen this complaint.
Now That You have Read this Complaint, Have a Look at This Video. Remember that the complaint puts the robbery at between 10:00 pm and 10:05 pm on 10/8/2013.
This is surveillance video from a location (theatre) about 20 miles from the location of the robbery. The red arrow points to our client. Conveniently, he walks directly underneath the time and date stamp that shows him leaving the theatre just minutes after the robbery had already taken place. (This video is used with permission of our client and the witness also depicted.)
If you are concerned that the picture is blurry and insufficient to identify a particular person, please be aware that we were able to locate the other people in the video, present them to the district attorney for interview, and we were able to produce all of the clothing of all of the people in the video. We presented everything we had to the District Attorney's office and made every witness available to them.
To their credit, the District Attorney's Office in question took this quite seriously, investigated the matter diligently, and ultimately the prosecutors were fully satisfied that the wrong man had indeed been accused. They dismissed the case against our client.
WHAT TO TAKE AWAY FROM THIS
My client faced going to a trial where the victim eye witness was going to get on the witness stand and swear under oath that he was never going to forget the face of the person who robbed him and that my client was him. The Government would have told you that before the trial, just a week or so after the offense, the victim identified my client in a lineup of similar looking people.
My client would have denied it.
You are juror number 4. How do you vote?
If this video didn't exist, and all you knew was that the defendant claimed to have been at the movies with his girlfriend, how do you vote? He was picked out of a lineup. He was arrested. He was brought to trial. An entire panel of jurors was summoned to an imposing courtroom. The judge reads you the indictment. The prosecutor, a representative of the District Attorney's Office has put together a big case. Police officers testify. A victim testifies who says he remembers the whole thing and that he will never forget the face of the defendant. And the only thing the defense has to offer is the testimony of the defendant who can only say that he thinks he was at the movies with his girlfriend. Do you even want to hear from his girlfriend? Or do you think the girlfriend will just say anything to try to save her boyfriend? Do you smile at the prosecutor during the cross examination of the girlfriend, when he mocks her ability to remember the particular night in question? And what if, for some reason, the defendant doesn't even testify himself?
Do you resent the the cross examination of the victim by the defense lawyer for trying to make it seem as if the victim's memory of the event was imperfect or for trying to establish that the identification is unreliable because of the brief time of the entire encounter?
New criminal defense lawyers tend to believe that "ID cases" like this are great cases where the defense really has a chance, unlike many other sorts of cases. Personally, I find ID cases like this to be highly dangerous cases because jurors seem to have a built in desire to want to credit victim eyewitness testimony. I totally understand this desire. You feel sorry for anyone who is a victim of a crime, and it is extremely satisfying to feel like the person responsible for an often violent offense has been identified and will be held accountable. The story of the victim who never forgets the face of the attacker is a compelling and satisfying story. It is familiar and easy.
But is it true in any given case? That is the tricky part.
This is scary stuff. Dealing with cases like this really makes you wonder how many of the many people who get convicted every year based on single witness identification are actually innocent.
Well all I can say is that I am glad we were able to locate the evidence and the witnesses necessary in this case to keep jurors from even being given the opportunity to make a terrible mistake.