The lawyer did it! - Another case of mistaken identification
I've written before about the unreliability of eyewitness testimony. Most people (including jurors and prosecutors) believe eyewitness testimony is generally reliable. In fact, most prosecutors are ecstatic when they have a case with an eyewitness. We have seen countless examples during the last several years of identifications that were clearly wrong. Even with that knowledge, the reliability of eyewitness testimony is still accepted, and difficult to overcome.
A humorous example of a mistaken identification occurred in a Dallas Courtroom. The following is from a story in Texas Lawyer:
On Nov. 11, George Milner Jr., a partner in Dallas' Milner & Finn who many consider the dean of the Dallas criminal-defense bar, was defending Marc Needham, who was accused of misdemeanor deadly conduct. According to a trial transcript, when Dallas County Assistant District Attorney Brian Poe asked a witness during direct examination to identify the defendant, she pointed to Milner. Poe asked her if she was sure, to which she replied: "He's the only one in the blue suit with blue tie. He stood up and objected. Him -- that's him there." After Poe passed the witness, Milner didn't miss a beat, telling Dallas County Criminal Court No. 6 Judge Angela King: "Your honor, first of all let me enter a plea of not guilty." Then Milner began cross-examining the witness. When Milner asked her what she remembered, she said: "Well, sir, I hate to tell you this, but the first thing I heard was you pointing a gun at me and saying, 'Now do you want to F with me?' Don't you remember that?" "No. My memory is about like yours," Milner said. "No, mine is very sharp, sir," the witness replied. During redirect examination Poe asked the witness, "Would you be surprised that the person you've been talking to for the last 25 minutes is actually named George Milner? He's a prominent attorney here in town, and he represents Marc Needham?" The witness replied, "Well, that's a good trick they played, because he looks just like him to me." The jury found Needham not guilty. Poe believes the reason the witness misidentified Milner is she saw him when she testified at a grand jury hearing. For Milner, it was just another great story he has accumulated during his 50 years practicing criminal law. "It was funny -- one of those once-in-a-lifetime deals," Milner says. "There's no rule as to what you do when that happens."
This case points out something more than the unreliability of eyewitness testimony. It points out something all defense lawyers know - the witness knows someone seated at the other side of the table is the defendant. It's generally not to hard to figure out which one it is - you can usually tell which one is the lawyer and which one is the defendant. Here, the witness was apparently confused. There is no doubt she wasn't basing her identification on what she saw at the time - she was basing it on who in the courtroom was fit the description the best.
This also points out a problem with lineups - witnesses pick the person who best fits the person they saw. This is why everyone recommends sequential lineups, where the witness is shown one picture at a time.
One of the things that bothers me about this case is the action of the prosecutor. The job of the prosecutor is to see that justice is done. If the only evidence was the victim's identification, is it justice to prosecute someone whose identity is suspect? Too often prosecutor's rely on juries to make the decision on guilt, and they did so here. In doing so, they abdicate their responsibility. More importantly, most jurors believe prosecutors have no doubt about a defendant's guilt. Too often, that enters their decision, and could have done so in this case. Thankfully jurors saw the case for what it was, and returned a not guilty verdict.
I wish that the more of these stories that come out, the more the public would start question the reliability of eyewitness identification. Unfortunately, there hasn't been much impact so far, and I don't see it changing. That is why it is critical that we adopt practices that will ensure identifications are as accurate as possible.
