People misidentify others all the time. We think we see our best friend in the grocery store and realize it is a stranger. We meet a group of people and mistake two from the crowd for each other. We pay a store clerk at one moment and cannot remember that clerk later that day. Cross-racial identification exacerbates the situation.

When a person is a victim of such a violent crime as robbery, the stress and self-preservation factors involved make identification of the perpetrator all the harder, as well as certainty or not about what type of weapon if any the perpetrator had.

Nevertheless, yesterday the Virginia Court of Appeals okayed a trial judge’s refusal to instruct jurors on the caution to take in weighing people’s ability to identify crime perpetrators and their purported weapons, and also okayed the trial court’s refusal to allow funds for the defendant to hire an expert witness in identification, saying that such testimony would invade the province of the juror. Payne v. Virginia, ___ Va. App. ___ (Sept. 9, 2015).

Too many wrongfully convicted people languish in prison, including from misidentification. If courts will not enable criminal defendants sufficiently to mount misidentification defenses, we need all the more for the law to change in that direction.