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“I will never forget that face”? Hogwash

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“[T]he annals of criminal law are rife with instances of mistaken identification,” as the late Justice Brennan reminded us in 1967. U.S. v. Wade, 388 U.S. 218, 229 (1967). In fact, plenty of people have mistaken Albert Einstein’s face for Marilyn Monroe’s.

Recently a robbery victim in the District of Columbia said with nine out of ten certainty that the police officer in his identification lineup was one of his robbers. Certainly, police being people, they are not immune from committing crimes, but here the eyewitness robbery victim got it wrong, as if he were picking out officer Stavros on a Kojak lineup. Gray v. U.S., ___ A.3d ___ (D.C., Nov. 7, 2013).

Why, then, did Gray’s trial judge deny his identification expert the opportunity to testify? She said his testimony would not sufficiently aid lay jurors. Hogwash. Today, although D.C.’s highest court said the trial judge ruled wrongly, the appellate court called this harmless error. Gray.

In any event, the trial judge entered her erroneous ruling against eyewitness testimony before the D.C. Court of Appeals set matters straight, thus preventing such a future ruling from being harmless:

This court concluded in Minor that the topics about which the expert in that case would have testified, i.e., the effect of severe stress on eyewitness identifications and the relationship between a witnesss confidence and accuracy – two of the topics on which Dr. Penrods proffered testimony in this case would have focused – are “beyond the ken of the average lay person” and “average juror.” 57 A.3d at 414-15, 416 n.5. Minor also held that the scope of the second Dyas factor (whether the witness has “sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth,” Dyas, 376 A.2d at 832 (emphasis and internal quotation marks omitted)), “is narrow and assesses only whether the proffered expert is qualified to give the proposed testimony.” 57 A.3d at 416…


As to defending in general against misidentication, see my previous blog entry on Club Ah v. Club Blah.