Challenging Eyewitness Testimony in Criminal Court

One of the most influential, effective, and valuable types of evidence at a prosecutor’s disposal is eyewitness testimony. There is no better way to convince a jury of something than to have someone believable look them in the eyes and tell them precisely what happened.

Challenging, discounting, and disproving what an eyewitness says is not easy, but it is doable. Sometimes eyewitness testimony is not always as reliable as it seems.

If you are facing criminal charges, you may come face to face with an eyewitness to whatever you are accused of doing. You may want to challenge what they say. The best way to do this is to hire a criminal defense attorney who knows trials, trial tactics, witnesses, juries, and how to challenge testimony.

Grounds for Challenging Eyewitness Testimony

You can challenge eyewitness testimony on several grounds. The goal is to suggest that what they are saying is not reliable.

First, you can attack the substance of what the witness says. Maybe it was dark. Perhaps they were far away from the alleged crime. Possibly, something was obstructing their view, or maybe what they say does not make logical sense.

Second, you can attack the reliability of the eyewitness. Maybe their memory has been influenced by law enforcement, they were not wearing their glasses, they have something to gain from their testimony, or their ability to remember is not good enough for a jury to rely on.

How To Challenge Eyewitness Testimony in Criminal Court

An experienced criminal defense lawyer will be able to ask the witness questions to show that what they are saying is unreliable. They can question the witness about how well they could see the event. If their facts have changed or there has been any inconsistency in their story, your attorney can capitalize on this. They may also challenge the police procedures of identifying and questioning the witness.

Common Weaknesses in Eyewitness Testimony

Eyewitnesses make mistakes. In addition to questioning their physical ability to witness whatever happened because of darkness, rain, or their own failing eyesight, you can also ask them whether they felt stress or fear while witnessing the event.

How To Cross-Examine an Eyewitness

Because the eyewitness is their witness, the prosecutor will ask questions of the eyewitness. This is called direct examination. Your attorney will then be able to cross-examine the witness.

Cross-examination is a way to ask questions in court to show the jury that the witness’s testimony might not be reliable. They will ask specific and strategic questions designed to create doubt in the accuracy of what they just testified, including:

• “Do you wear glasses?”
• “What was the lighting like when the alleged crime happened?”
• “You are getting immunity from this testimony, right?”

How To Present Expert Testimony on Eyewitness Identification

In severe cases, you can hire an expert witness to testify that the eyewitness’s testimony is unreliable. Some expert witnesses can testify about how human memory works, how stress affects memory, and how difficult it is to see things accurately in the conditions surrounding the alleged crime.

There are also experts specializing in criminal justice who can testify about misidentification, eyewitness memory problems, the perils of suggestive identification (when the police do something to influence a witness), and false identification.

If witness testimony contradicts DNA evidence, you can hire an expert witness to discuss forensic science.

Common Mistakes To Avoid When Challenging Eyewitness Testimony

If the eyewitness is generally likable or vulnerable, your attorney must be careful not to attack them personally. Your attorney should not call them a liar or make them out to be an immoral or dishonest person. You can challenge the identification procedures of the police, like the photo array, or that the suspect line-up was somehow flawed. This makes the witness’ identification of you and their witness testimony unreliable.

Successful Strategies for Challenging Eyewitness Testimony

The most successful strategies for challenging eyewitness testimony include highlighting inconsistencies in the eyewitness testimony. An experienced criminal defense attorney will be able to capitalize on slight differences between what they say when first contacted by police and what they say in court. Showing that the eyewitness might have something to gain from their testimony is also a way to minimize the effectiveness of their testimony.

Developments in Eyewitness Identification Research

Scientists are constantly researching memory and how memory works. While hiring an expert to testify about how memory can erode over time and why the eyewitness’ testimony is unreliable could be expensive, it could also be worth it. Experience tells us that confidence does not always equal accuracy. Just because the witness is positive about what they saw or heard does not mean it is true.

Challenging eyewitness testimony can be an effective way of discrediting criminal cases and avoiding wrongful convictions. However, it requires the skill and experience of a skilled criminal defense attorney.