AV Preeminent
The Florida Bar

Eyewitness identification

Fort Lauderdale criminal defense attorney William Moore is often asked about eyewitness identification.

Eyewitness identification is among the most widely used form of evidence in criminal prosecutions. However, this form of evidence is frequently subject to human error and which may result in misidentification. DNA evidence is only available in very few cases, so law enforcement and prosecutors often rely upon eyewitness identification in order to charge and convict.

There are several reasons why improper identifications are made. These reasons include cues from the line-up administrator, suggestive composition of line-ups, and the witness feeling compelled to make an identification. Psychological research supports the notion that the human memory is not like a video recorder. Each new piece of information helps to construct and transform the memory, which can be manipulated and transformed even by the most subtle cues and interactions with well-intentioned law enforcement officials.

Fort Lauderdale criminal lawyers emphasize that there are many empirical studies that have conducted which reveal the infallibility of the human memory and the high risk for error in eyewitness identification. Just one example, was shown in the 1974 experiment conducted by psychology professor Robert Buckhout. He broadcasted a 13 second video clip of a woman getting mugged which revealed the perpetrator run face forward toward the camera. Following the clip, viewers were shown a lineup of six men who resembled the attacker and a phone number to call in and identify the perpetrator. Professor Buckhout and his students handled the calls and the results revealed that only 14% of viewers made a correct positive identification which is about the same statistic that would have occurred if callers simply guessed. This finding corroborated the evidence from decades of similar research on eyewitness identification.

The National Institute of Justice and the American Bar Association advocate that certain procedural safeguards be implemented to help prevent misidentification in the criminal justice system. Those procedural safeguards include:

  • Double Blind Presentation: An administrator who does not know the identification of the suspect should present the photo array or conduct the line-up process as to not exert any influence of the witness or victim
  • Line-Up Composition: The suspect should be placed in a line-up with other persons who resemble the eyewitness’ description of the perpetrator, known as fillers, so that the suspect does not stand out and result in an unnecessarily suggestive composition
  • Witness Instructions: The person viewing the lineup should be told that the perpetrator may not be in the line-up but informed that the investigation will continue regardless of whether an identification is made.
  • Confidence Statements: At the time an identification is made, an eyewitness should provide a written statement in his or her own words indicating the fact that an identification is made and which indicates the level of confidence made in his or her decision.
  • Recordation – Identification procedures should be videotaped to ensure that the witness is identified freely and voluntarily without undue influence from law enforcement.
  • Sequential Presentation – Presentment of line-up members one by one by a blind administrator as opposed to in a side-by-side order

Legal professionals and psychology experts agree that widespread reforms must be enacted to prevent such errors. When innocent person are wrongfully identified, persons are wrongfully incarcerated, the victims are denied justice, and public safety is compromised a real perpetrators remain at large.

For more information pertaining to the errors of witness ification please see the publication entitled “Re-Evaluating Line-Ups: Why Witnesses Make Mistakes and How to Reduce the Chance of Misidentification” published by the Innocence Project of Cardozo Law School.

Wrongful Convictions Cases Later Overturned ThrouA Testing

Which Involved Eyewitness Misidentification in Florida

  1. Orlando Boquete – Convicted in 1983 and exonerated in 2007.
  2. Larry Bostic – Convicted in 1989 and exonerated in 2007
  3. Alan Crotzer – Convicted in 1981 and exonerated in 2006
  4. Davis Cody – Convicted in 2006 and exonerated in 2007
  5. Wilton Dedge – Convicted in 1982 and exonerated in 2004
  6. Luis Diaz – Convicted in 1980 and exonerated in 2005
  7. William Dillion – Convicted in 1981 and exonerated in 2008
  8. Free Lee Smith – Convicted in 1986 and exonerated in 2000

Name State Convictio

Right to Counsel During Line-Ups

The right to counsel does not apply to photo identifications or at pre-charge investigative line-ups. At post-charge line-ups, a criminal defendant has the right to counsel. A defendant should invoke their right to counsel at a post-charge line-up to ensure that the line-up is fair and not suggestive.

If you have questions about any criminal case originating in Broward County Florida, contact Fort Lauderdale criminal attorney William Moore.

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