Eyewitness Identification

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What Is Eyewitness Identification?

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:

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:

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:

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.

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Last Modified: 04-07-2015 12:47 PM PDT

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