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How Federal Criminal Defense Lawyers Challenge Identification Procedures

How Federal Criminal Defense Lawyers Challenge Identification Procedures

Eyewitness misidentification is one of the leading causes of wrongful convictions in the United States. As a result, criminal defense attorneys routinely challenge the identification procedures used by law enforcement to try and get unreliable or suggestive identifications thrown out. This article will discuss some of the main ways that federal criminal defense lawyers challenge identification evidence.

Filing Motions to Suppress Identification Evidence

One of the most common ways for defense attorneys to challenge identifications is to file a motion to suppress the identification evidence. These motions argue that the identification procedure used by police was unnecessarily suggestive and conducive to irreparable mistaken identification.

According to the Supreme Court case Manson v. Brathwaite, identification evidence can be excluded when police use an identification procedure that is both suggestive and unnecessary. So one of the main things the defense attorney will argue in a motion to suppress is that the procedure used didn’t need to be suggestive, and that it influenced the witness making the identification.

Some examples of common arguments a federal criminal defense lawyer might make in a motion to suppress identification include:

  • The lineup or photo array only contained one suspect that matched the description of the perpetrator
  • Police told the witness they caught the suspect before conducting the identification
  • An officer conducting the lineup knew who the suspect was and gave unintentional cues
  • The photos in the array had differences like background color or lighting that made the suspect stand out

If the judge agrees that the identification procedure was unnecessarily suggestive and likely impacted the reliability of the identification, they can grant the motion and prohibit the prosecution from using that identification evidence at trial.

Retaining Expert Witnesses

Another way federal criminal lawyers challenge identification evidence is by using expert witnesses. Expert witnesses can educate the judge or jury about the fallibility of eyewitness memory and identifications.

According to research by the Innocence Project, eyewitness misidentification plays a role in over 70% of convictions overturned by DNA testing. An expert witness can explain factors like:

  • The impact of stress on memory during a crime
  • Issues with cross-racial identification
  • How post-event suggestion can alter memory
  • Problems with showups conducted right after a crime

By demonstrating the weaknesses in human memory and perception, the defense expert can show how even well-intentioned witnesses can make confident but mistaken identifications. This testimony gives context for arguing that a particular identification is unreliable.

Cross-Examining the Eyewitnesses

Vigorous cross-examination of the eyewitnesses themselves is also a key part of challenging identification evidence. The defense attorney will probe the witness’ opportunity to observe the perpetrator, the circumstances around the identification, and their level of confidence.

Some areas a lawyer might explore on cross include:

  • Lighting conditions during the crime
  • Whether disguises or hats obscured the perpetrator’s face
  • Distance and timing of the observations
  • Whether the witness was under stress or distracted
  • Inconsistencies with prior descriptions given to police

By exposing gaps and uncertainties in an eyewitness’ testimony, the defense can raise doubts about the accuracy of the identification.

Presenting Alibi Defenses

Finally, federal criminal defense lawyers will also look to present affirmative evidence that their client was elsewhere at the time of the crime. A convincing alibi defense directly contradicts mistaken eyewitness identifications.

Alibis are time-specific defenses showing the defendant couldn’t have committed the crime. Cell phone records, credit card receipts, eyewitnesses who place the defendant elsewhere, and employment records are types of evidence used to prove alibis. Demonstrating the client was at work or home during the criminal activity calls into question mistaken identifications by the victim or other witnesses.


Given the documented issues around eyewitness memory, challenging identification evidence is a key part of defending mistaken identity cases. Federal criminal defense lawyers have a variety of tools at their disposal, like motions to suppress, expert witnesses, cross-examination of witnesses, and presenting alibis. Relying on these strategies, attorneys can demonstrate the weaknesses in eyewitness identification procedures and argue for acquittal of their wrongly accused clients.

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