Eyewitness identification sucks!

Yesterday I was set to try a misdemeanor battery case that provided an excellent illustration of the pathetic unreliability of eyewitness identification. There has been a bar fight. The supposed victim couldn’t identify his attacker, because he was jumped by about five guys, knocked out and couldn’t remember much. The state’s star witness was fellow who worked at the bar and supposedly walked outside to find my guy (all by himself) pummeling the victim.

I sat down next to him and asked what he saw.

“Did the prosecutor show you a photo lineup of possible assailants?” I asked.

“No.”

“Did you know the assailant from before or have you seen him after the fight?”

Again, “No”

“Do you think you’d recognize him if you saw him now?”

“Yea, I’m pretty sure I would.”

“Is that fellow sitting alone on the third bench wearing the brown tee shirt him?” I asked, gesturing at a witness in an unrelated case who looked nothing whatsoever like my client.

“Yes.”

“Really? Are you absolutely certain?”

“Absolutely! I’d swear my life on it!”

After a brief conversation with the prosecutor the matter was dismissed. But what if the witness had first been asked to identify my client when he was sitting at the defense table? And how many innocent people are in prison based on exactly this type of blunder?

I know it’s been said before, and many times, but our rules regarding eyewitness identification are in need of a major over hull–and immediately!