In a previous blog entry, we’ve discussed some of the numerous the problems with eyewitness identifications. Let’s address a specific issue involving eyewitnesses that many defendants have to overcome: the lineup.
If you’re ever asked to participate in a physical lineup you probably want to call a criminal defense attorney immediately because your freedom could very well depend on what happens next.
Physical lineups are considered a “critical stage” of the criminal investigation process—so much so that some jurisdictions have begun to put fail-safes in place designed to protect your rights. However, those rules may not be observed everywhere and there’s always the chance of an accidental or intentional oversight. Without an attorney present, you may not find out exactly what happened before you were picked out of the lineup by an eyewitness and suddenly charged with a crime.
But there are other very important reasons to have your own attorney present when the lineup is conducted:
—Your attorney may be able to stop the process if it’s unfair. For example, your attorney might notice that everyone in the lineup has hair that is noticeably lighter or darker than yours, even if most of your other features are similar.
—Your attorney may be able to make the process fairer. For example, if the eyewitness asks to hear you say a specific phrase or sentence that was uttered at the scene of the crime, your attorney may ask that all of the participants be asked to say the same thing.
—He or she can observe the behavior of the eyewitness. Was the eyewitness hesitant or sure about the identification? Did he or she tentatively identify someone else first and then change his or her identification to you?
—Your attorney can listen to interactions the police have with the eyewitness, which could be useful later if you go to trial. For example, if your attorney overhears the eyewitness tell the officer that he or she is “90 percent sure” of the identification or mention that he or she was really frightened when the crime happened, that could be a point your attorney can use at trial to cast doubt on the identification.
Finally, your defense attorney’s presence alone may benefit you. People simply tend to be more aware of what they are saying and doing when they’re aware they’re being watched and it might later be brought up in court.
Source: FindLaw, “Lineups and Other Identification Situations,” accessed Dec. 29, 2016