Misidentification Defense – The 100% Method

In the criminal context misidentification is a phenomenon where victims or witnesses of criminal activity mistakenly identify one person as the perpetrator of the crime. When this happens the people making the identification become convinced that the person they identified is the person who they saw committing the crime. There are many reasons why this happens and we will not get into them here. But if you’re interested in the basic principles and causes of misidentification you can read this.

The problem with misidentification in a criminal trial (for the defense) is that the jury puts a lot of emphasis on the level of certainty claimed by the witness or victim. If the victim or witness says they are 100% convinced that the defendant did it that’s good enough for a lot of people. This is compounded by the fact that most victims or witnesses will say they are 100% convinced that that’s the person who did it. Rarely do you have a misidentification case where the victim or witness says that they think that’s the guy, or that it could be the guy.

Probing Certainty

The good news is that the same certainty that hurts your case in front of the jury can also significantly help your case if you prepare your case right. When you have an opportunity to question victim or a witness in a misidentification case you should take them through the description they gave to the police on the day of the incident (as you normally would). But then for each descriptor (height, weight, eye color, hair color, hair length, etc), you should ask them how sure they are. Are you 100% sure the robber had black hair? Are you 100% sure the robber had green eyes? Are you 100% sure the robber was 6’0″?

This line of questioning plays out in one of two ways: 1) the victim or witness is 100% sure of a whole bunch of different things, a lot of which do not match your client. 2) the victim or witness is shaky as to a whole bunch of different things. Here is how you handle each of these scenarios at trial:

100% Certain, 100% Wrong

This scenario is the best for trial purposes. In this scenario the victim or witness is 100% sure that the actual perpetrator had characteristics that do not line up with your client’s. On cross examination you can elicit the descriptors that do not match your client, and then elicit the certainty.

Q: The man who robbed you was 6’5″

Q: You are 100% certain of this.

Q: The man who robbed you had blue eyes.

Q: You are 100% certain of this.

Q: The man who robbed you did not have gold teeth.

Q: You are 100% certain of this.

This cross examination will provide the foundation for your theory of the case. The person who did it is not your client because the victim/witness is 100% certain that the person who committed the crime is taller, heavier, has a different eye color, etc. The contrast of this method also has the advantage of subconsciously decreasing the value of the victim’s certainty in the minds of the jury. It is hard to reconcile the victim’s 100% certainty that the man who did it is in the courtroom vs. the victim’s certainty that the man who did it has very different characteristics from the man sitting in the courtroom.

This cross examination also has the advantage of putting the prosecution into a corner. The prosecution will be forced to argue that the witness’ 100% certainty towards the descriptors that do not match your client should not be relied on, yet at the same time argue that the witness’ 100% certainty that your client did it should definitely be relied upon.

Not Certain Of Anything, Except That Your Guy Did It

This scenario is not as good for trial as the first scenario, but it could work just as well. This is when the witness or victim can’t be sure of any of the characteristics of the person who committed the crime but at the same time is convinced that your client committed the crime. This is the typical “I’ll never forget that face” (even though I can’t describe anything about it…). You handle this witness in trial by eliciting all the things they are not sure about. For example:

Q: You do not know whether the robber had gold teeth.

Q: You do not know whether the robber had a face tattoo.

Q: You do not know whether the robber was taller than you.

Q: You do not know whether the robber was white.

Q: You do not know whether the robber was black.

This cross examination provides the foundation for your theory that the witness’ version is not reliable because of all the things the witness is not sure of. If your client has distinctive features that the witness should have been able to see if he was the real robber you also highlight those. For example: if my client was the robber there is no way that the witness would not have seen that huge tattoo on his face.

Note: This technique assumes that you have either a right to depose or access to a pre-trial hearing where you can waive your client’s presence.

The Takeaway

Always probe the certainty of the witness as to every aspect of the description before the trial. It will never hurt you, it can only help you. For other tips on how to enhance your misidentification defense, look here.

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