Eyewitness identification is where a witness identifies the perpetrator of a crime. Witnesses base their identification on actual physical perception of the crime. Identification is not based 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 pretrial identification. This occurs before trial has formally started. Pretrial identification can occur in three basic ways:

  • Police Lineups: In a police lineup, the suspect is usually in a group with other people who serve as “decoys.” Eyewitnesses anonymously choose which person they believe is the person responsible for the crime
  • Showups: are like lineups, except that the suspect is by themselves without any decoys. Showups are commonly used at the scene of the crime. The police ask the witness to identify a person that they have apprehended shortly after the commission of the crime.
  • Photograph Identification: Police will show eyewitnesses an array of photographs. One of which contains the named suspect. The police will then ask witnesses to point out which person they believe is the suspect.

Eyewitnesses can also identify a person 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?

Criminal defendants have a constitutional right to have an attorney present at all “critical stages of prosecution.” Under the 6th Amendment, the right to a criminal defense lawyer begins after prosecutors file formal charges.

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

  • Police Lineups: This is a “critical stage” of the case because prosecutors have filed charges. Suspects have the right to have an attorney present during these lineups. 
  • Showups: The suspect only has a right to an attorney if charges have already been filed. If the showup was conducted immediately at the scene of the crime before charges have been filed, then the suspect has no right to an attorney.
  • Photo ID: Photo identifications are not considered to be a “critical stage” of prosecution. Even if charges have already been filed, there is no right to an attorney during photo identifications. Also, the suspect is usually not physically present during a photo identification.

Identifications obtained through an unconstitutional pretrial identification cannot be used as evidence in court. For example, if an attorney was not present during a lineup, then identification cannot be used as evidence.

How Are In-Court Eyewitness Identifications Verified?

Normally, the court cannot use eyewitness identification if it was improperly obtained. But courts may allow the eyewitness to make an in-court identification validly verified. The witness’ in-court identification must be based on an independent basis. For example, if the witness personally saw the crime being committed.

A criminal court will consider the following factors as an independent source:

  • Factors relating to the witness. For example, the witness’ degree of attention, or the accuracy of the witness’ previous descriptions of the suspect
  • Factors relating to the crime itself. For example, the length of time that has lapsed since the commission of the crime and the current in-court identification

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

Should I Get a Lawyer for Eyewitness Identifications?

Yes. The outcome of a criminal trial often depends on eyewitness identifications. An experienced criminal defense attorney can help ensure that your constitutional rights are not violated.