Having handled criminal defense cases for twenty-five years, I've encountered numerous witness identification issues. In other words, I've had many cases where my client says, 'I'm innocent. ' I didn't commit the crime, but they have witnessed it out there by identifying them as being involved in the crime. Obviously, that's something that a great criminal defense attorney is going to have to contend with throughout their career. That is, witnesses coming in and trying to identify their clients. It's interesting because if you ever do a little exercise and you try to take a look at somebody, or you think of a scenario where you looked at somebody. Now, you have to go back and try to identify that person; it's not always easy.
Sure, it's easy to identify somebody when you know that you're going to be trying to identify them later on, but when you're just in a scenario. The scenario happens as a potential witness in a criminal case in one of the jurisdictions of Los Angeles; you're going to be in a position where you look, something happens – you're not thinking, oh, I have to identify this person later. All of a sudden, you have to try to identify them later, and it's not weeks later; sometimes, it's months later. Sometimes, it's even years later.
Therefore, many of these witnesses do not necessarily identify the individuals because they do not recall seeing them. They're identifying them based on circumstances. For example, you come into a preliminary hearing in a criminal case. There's a witness who is trying to identify somebody, and the guy who is seated next to the guy in the suit is obviously the person that the prosecutors and police think committed the crime and is the one that you're supposed to identify. So, often people identify them based on that, rather than remembering them.
Let me tell you something – how you get to the bottom of that is by having a client who says they didn't do it, and then filing a motion for the live lineup. They do those live line-ups down in the Los Angeles County jail. They give the inmates extra food if they're willing to participate in them, so they'll put your client out there in the county blues, and then they'll pick five other people who look like your client and see if the witness can identify him. I'll tell you right now, based on my experience – and I've done a number of live line-ups at the Los Angeles County jail - the sheriffs do a pretty good job. As much as I don't like the sheriffs, when I go over there, and it takes forever for me to see my clients, and they just have a bad attitude in general, they do a heck of a job when it comes to these line-ups in picking people that look very close to the client.
I've had a lot of success with live line-ups because once you get that live line-up, you go to trial, and the prosecutor is trying to get that witness to identify your client. Even if the witness identifies your client and says, yeah, that's the guy over there sitting next to the guy in the suit – that's when you get them. That's when you say, ' Wait a minute, you went three or four months ago to a live lineup when your memory was better, and you picked number three, or you couldn't pick anybody. ' Then you point out where your client was – number six – you say Let me show you a picture, and you show the jury so they can see it at the same time. Do you see who number six is? Yeah, you see the guy seated over at the table that you just identified? That person is number six. But you picked number three. So, how can you be certain of your identification if you're picking the wrong person? That's one example of how to attack someone's eyewitness identification.
There are numerous other examples, but they hinge on the facts of the case. Never scenario, not every witness identification is going to be the same. You need to examine the facts of the case. You have to look at the circumstances. Speak to the client. I sit down and talk to the client. I only sometimes do live line-ups because you can get burned on a live line-up. If the witness identifies your client, you now have a double identification – you've the live lineup, and you've them identifying him from a six-pack photographic lineup, or you've them identifying him out in the field when the police simply grab him and say, ' Is this the guy? '
So, you have to be really careful with the I.D. cases because the more witnesses that identify your clients and under better circumstances, where a jury is going to say, How did they pick the client? If that's not the person, how did they end up picking him? So, if you have a situation involving a witness identification issue, you need to consult with an attorney who has experience. I've been doing this for a considerable amount of time. There are only a few attorneys – you've got to be battle-tested as an attorney, having done a lot of trials, having cross-examined a lot of alleged eyewitnesses – and know exactly how to deal with them, what to say and how to coordinate with your client to make the right decision when it comes to a witness identification issue in one of the Los Angeles County courts.
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