Witness Misidentifying a Defendant

Misidentifying a Defendant by a Witness

If you are in need of a Prince William County criminal defense lawyer, please contact us. The following is a blog post written by Colleen Kirby, an experienced Howard County criminal lawyer.

Recently I found myself in a position with a client that was in the United States on a Student Visa and charged with a crime that would have serious immigration consequences.  The client’s spouse was in the United States as a dependent on the Visa and their two children were born in the United States, therefore, citizens.

After a misunderstanding at a department store, the police were contacted and my client was released with the uneasiness of whether criminal charges would ensue.  Approximately six (6) months after the incident, the client came to my office in tears after receiving charging documents.  I immediately advised the client to speak to an immigration attorney to determine how to protect their right to remain in the country.  The conclusion was that a dismissal was needed to best protect my client.

After reviewing all of the evidence, I spoke to the prosecutor.  After SEVERAL negotiation attempts, he was not willing to go forward on anything less than a conviction.  As the trial date approached, my client was becoming more and more anxious and desperate.  After many visits to my office, the client also grew affection for my dog, Maddie, and was kind enough to bring her toys, treats, and dog food!

On the day of trial, almost a year had passed since the incident date.  When I entered the courtroom, I found the State’s witness and asked if he would mind speaking with me in the hallway.  He agreed, knowing that I represented the defendant and he was under no obligation to speak with me.  The State’s witness and I sat down outside of the courtroom to discuss the case.  When I asked the State’s witness to describe what happened, he flipped through his file to find the report.  It was clear to me that the witness has NO recollection of this incident.  Upon finding his report, his response was “oh yeah, here it is” and he proceeded to read the facts word for word from his report.  Obviously the witness had zero recollection of this incident other that what his notes reflected.  He also indicated he had the video surveillance, but neither he nor the prosecutor had reviewed it.

I asked the witness if he had seen the defendant in the courtroom to which he responded, “No, I have not seen [them].”  Knowing my client was in the courtroom, sitting directly behind the witness, I realized the witness would never be able to identify my client.  I thanked the witness for his time and he returned to his seat in the courtroom.

At that point, I decided to take advantage of the fact that the witness could not identify my client.  I returned to the courtroom and sat next to an individual of the same sex, race, and age.  I passed a note to the prosecutor asking him to have the witness identify the defendant.  As the judge was still on the bench, the prosecutor called the witness up and whispered something to him.  I then saw the witness point to the individual sitting next to me and say, “that’s the one!”  The prosecutor asked him how sure he was and the witness said, “100%, that’s the [person].”

After hearing that conversation, I wrote a note to my client instructing to please not respond if her/his name was called and discretely handed the note to my client as I pretended to step out to the restroom.

The prosecutor called me to the front and told me there was a positive identification made.  Much to the dismay of the prosecutor, I informed him that there was a misidentification and the individual identified by the witness was not the defendant.

Eventually the prosecutor excused the witness, informed me he was dropping the charges and called the case.  I called my client to the trial table and all charges were dismissed.  My client was beyond thrilled and broke down in tears.  My client can now pursue his/her career and remain in the United States with his/her family.

The scary part of this story is that if I had not taken the time to speak to the State’s witness, my client and I would have sat together at the trial table and the witness would have pointed the finger at the person sitting at the defendant’s table.

Misidentifications happen FAR too often and land people in jail or prison for crimes they did not commit.  Witnesses, whether subconsciously or not, will always point to the person sitting at the trial table and ID them as the person who committed the crime.  Therefore, the “cloak of innocence” does not apply when you are sitting at the table marked “defendant.”

One example that many of you may be familiar with is from the movie, “My Cousin Vinnie.” Below you can find a link showing some quotes that demonstrate exactly how easy it is for witnesses to misidentify the defendant.

Misidentifying a witness

While this is only a fictional movie, unfortunately, it happens far too often.  For example, there are many individuals who spend years on death row only to be later exonerated by DNA evidence.  In many of those cases, I am sure the witness/victim pointed to the defendant and said, “I am 100% sure that is the one!”  After 20, 30, 40 years, the truth is finally revealed.  And in some incredible cases, the truth is never revealed.  My goal is to ensure that the witness is identifying the correct person, and if they cannot identify the guilty party, the State must dismiss the charges.

As for my former client, we have continued to maintain a very friendly relationship.  Just as I told the client when we first met, I found a way to make something work out to protect all their hard work.  Seeing my client and the family so happy was reward enough for me!  And to top things off, my client asked for another meeting after the court date and insisted I bring Maddie.  My client arrived, with another goodie bag for Maddie to show gratitude!  I don’t know who was happier: myself, my client, or Maddie!