Eyewitness Identification

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What Is Eyewitness Identification?

Eyewitness identification is where an eyewitness identifies the perpetrator of a crime. The identification must be based on actual physical perception of the crime, and not on hearsay or rumor. An eyewitness is a person who has seen the crime or has knowledge of its commission. The eyewitness may be a victim, a bystander, or a participant in the crime who will testify in exchange for a lesser sentence.

The most common type of eyewitness identification is called pretrial identification, which occurs before trial has formally been started. Pretrial identification can occur in three basic ways:

In addition to pretrial identifications, the eyewitness can also make an identification under oath in court during direct and cross examinations. For example, an attorney may ask the eyewitness to respond to the question, “Is this the person who committed the crime?”

Is a Lawyer required to Be Present at a Pretrial Eyewitness Identification?

Every defendant in a criminal case has a constitutional right under the 6th Amendment to have an attorney present at all “critical stages of prosecution”. This right to a criminal defense lawyer begins only after formal charges have been filed. 

With regards to pretrial identifications, the right to an attorney is as follows:

Identifications that are obtained through an unconstitutional pretrial identification cannot be used as evidence in court. For example, if an attorney was not present during a lineup, or if the lineup was excessively suggestive in pointing out the suspect, the witness’ identification is excluded from evidence. 

How Are In-Court Eyewitness Identifications Verified?

Even if a pretrial identification procedure was unconstitutional, the court may still allow the eyewitness to make an in-court identification. However, the in-court identification must be based on an independent basis (for example, if the witness personally saw the crime being committed).

In order to determine whether an independent source of identification exists, a criminal court will consider such factors as:

Finally, whether an identification is made pre-trial or during trial, all evidence needs to be proven by the prosecution beyond a reasonable doubt. 

Do I Need a Lawyer for Eyewitness Identifications?

The outcome of a criminal trial often depends on eyewitness identifications. Therefore, it is very important that the defendant be represented by a lawyer whenever they are entitled to one. Having an attorney present during identification procedures can help ensure that the suspect’s rights are not violated, and that the identification occurs according to the requirements of state laws and the constitution.   

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Last Modified: 11-19-2013 10:46 AM PST

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