Misidentification experts- Fairfax criminal lawyer weighs in

Misidentification experts are limited to a Virginia trial judge’s sound discretion, says Fairfax criminal lawyer

Misidentification runs rampant in obtaining criminal convictions for murder, robbery, rape and other prosecutions. As a Fairfax criminal lawyer, I urge that the law be updated to at least permit wider opportunities than currently exist for Virginia criminal defendants to present jurors with expert witness testimony about wrongful identification, and jury instructions on the same.

Virginia Supreme Court leaves identification expert testimony and jury instructions to the trial judge’s sound discretion

Unfortunately, this week the Virginia Supreme Court left misidentification expert testimony and misidentification jury instructions to the trial judge’s sound discretion. The Court confirmed that it “has not addressed in what circumstances expert testimony regarding eyewitness identifications is admissible,” but then proceeded to embrace Court of Appeals caselaw giving wide discretion to trial judges on whether to admit such testimony. Watson v. Commonwealth, ___ Va. ___ (Dec. 12, 2019).

A gruesome homicide does not justify straightjacketing a misidentification defense

Watson clearly involves a gruesome homicide and robbery, involving a wounding to the head of a robbery victim outside a Virginia Beach strip club and the senseless killing of his friend. Surviving robbery victim Jackson undoubtedly wanted to do his best to help identify and bring the perpetrators to justice. However, this very psychological urge to get justice in court supports permitting the defendant to present expert testimony about how misidentification can take place along the way.

IWatson accepts the Virginia Court of Appeals caselaw on admitting misidentification expert testimony or not: The “Court of Appeals has considered the issue on several occasions. It has held ‘that in some “narrow” circumstances, expert testimony [about eyewitness identifications] may be useful to the jury, including in the following areas: “such problems as cross-racial identification, identification after a long delay, identification after observation under stress, and psychological phenomena as the feedback factor and unconscious transference.”‘” Watson. 

A criminal defendant risking decades in prison should be permitted an identification jury instruction

Unfortunately, Watson even leaves to the trial judge’s sound discretion about whether to give the jury the Virginia pattern jury instruction that correctly states the law on witness misidentification, at Va. Crim. Model Jury Instruction 2.800.

The defendant is permitted to argue misidentification even without expert testimony

Ideally, criminal defendants alleging misidentification will offer the testimony of a misidentification expert, and will fight tooth and nail for the trial judge to permit such testimony. Whether or not such testimony is permitted, the the law allows the defense wide latitude for arguing misidentification. Watson.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor and DUI prosecutions. To discuss your case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.