Eyewitness Identification Defense Leads to Not Guilty Verdict
Eyewitness testimony can be powerful evidence in a criminal trial. But a confident identification is not necessarily an accurate identification.
Criminal defense attorney Michael J. Petro successfully defended a Chicago man who faced a potential prison sentence of 6 to 30 years after two Chicago police officers identified him as the driver of a vehicle involved in an armed incident.
Attorney Petro challenged the reliability of those identifications through detailed cross-examination and the testimony of eyewitness identification expert Dr. Geoffrey R. Loftus.
The result: Not guilty on all counts.
After approximately two years in Jail awaiting the resolution of his case, Petro’s client walked out of court a free man.
Two Chicago Police Officers Identified the Defendant
The case began on February 17, 2015, at approximately 6:55 p.m.
According to the prosecution’s evidence, a citizen told two Chicago police officers that he had just been threatened with a gun by two Hispanic males traveling in a gray SUV.
The officers began looking for the vehicle.
Some distance away, the officers encountered a gray SUV while the vehicles were stopped near one another at a traffic light. The officers observed two occupants inside the SUV.
The officers attempted to stop the vehicle, but the SUV fled.
During the ensuing pursuit, the officers reported seeing the driver throw a firearm from the passenger window.
The pursuit was eventually terminated, and the occupants escaped.
The critical question became:
Who was driving the SUV?
Police Identified Petro’s Client Five Days Later
The officers did not arrest the driver that night.
Five days later, after receiving additional information regarding the driver’s possible identity, the officers encountered Petro’s client in another vehicle.
Both officers identified him as the person they had seen driving the gray SUV five days earlier.
He was arrested and prosecuted.
The officers were confident in their identification.
The defense challenged whether that confidence was justified.
The Client Faced 6 to 30 Years in Prison
Petro’s client was charged with armed habitual criminal, a serious Illinois firearm offense.
If convicted, he would face a mandatory prison sentence of 6 to 30 years.
The prosecution had something that could be particularly persuasive to a jury: two police officers prepared to identify the defendant as the person they had seen driving the fleeing vehicle.
Attorney Petro’s defense focused directly on the reliability of those identifications.
Eyewitness Identification Expert Dr. Geoffrey R. Loftus
Attorney Petro retained Dr. Geoffrey R. Loftus, a professor at the University of Washington and an expert in human perception, memory, and eyewitness identification.
Dr. Loftus reviewed the police reports and testimony concerning the circumstances under which the officers observed the driver and later identified Petro’s client.
The defense did not simply argue that the officers were lying.
Instead, it presented a different question to the jury:
Were the circumstances under which the officers saw the driver sufficient to create a reliable memory of the person’s identity?
That distinction became central to the defense.
A Confident Witness Can Still Be Wrong
Jurors may naturally assume that a witness who expresses great confidence in an identification must have a good memory of the person.
The science of human memory is more complicated.
A witness can sincerely believe that an identification is accurate and still be mistaken.
That means a criminal defense involving eyewitness testimony must examine not only how confident the witness is at trial but also the conditions under which the witness originally saw the person.
In this case, the defense identified several factors affecting the reliability of the officers’ identification.
Limited Opportunity to Observe the Driver
One of the most important issues was the amount of time the officers actually had to observe the driver.
According to the evidence evaluated by the defense expert, the officers had approximately five seconds to observe the driver.
Five seconds can be very different from the impression a witness later creates when making a confident identification in a courtroom.
The defense focused the jury’s attention on what the officers could actually have observed and remembered during those few seconds.
Lighting Conditions
The incident occurred at approximately 6:55 p.m. in February in Chicago.
Lighting matters because the ability to perceive facial details can deteriorate as illumination decreases.
Dr. Loftus addressed whether the lighting conditions allowed the officers to obtain the detailed visual information necessary to form an accurate memory of the driver’s appearance.
The defense asked the jury to evaluate the identification based upon the actual viewing conditions—not simply the officers’ later confidence.
Divided Attention
The officers were not observing a person standing alone under controlled conditions.
There were two occupants in the SUV.
The officers were simultaneously dealing with a developing police encounter involving a vehicle they believed had been connected to a reported firearm incident.
Attention is limited.
When a witness’s attention is divided among multiple people, objects, threats, and events, less attention may be available for encoding the details of a particular person’s face.
Weapon Focus
The possible presence of a firearm was another important consideration.
People confronted with a weapon, or the possibility of one, may naturally focus their attention on the threat rather than on another person’s facial features.
The defense expert addressed how the circumstances surrounding the reported gun could have affected the officers’ attention and their ability to form an accurate memory of the driver.
Cross-Racial Identification
The defense also presented expert testimony concerning cross-racial identification.
The identifying officers were white, while the SUV’s occupants were described as Hispanic.
Research concerning eyewitness memory has identified circumstances in which people can have greater difficulty accurately identifying unfamiliar individuals of another race or ethnicity.
The defense did not rely on any single factor.
Instead, Attorney Petro demonstrated how multiple factors could combine to affect the reliability of the identification.
The Identification Procedure
Another important issue was what happened after the original encounter.
The officers identified Petro’s client five days later.
Dr. Loftus evaluated whether the procedure and information available to the officers after the incident could have affected their memories and increased their confidence in the subsequent identification.
Human memory does not necessarily operate like a video recording that remains unchanged after an event.
Information received later can potentially influence how a person reconstructs and remembers an earlier experience.
That made the circumstances surrounding the later identification an important part of the defense.
Cross-Examination of the Police Officers
Expert testimony was only one part of the defense.
Attorney Petro also cross-examined the two Chicago police officers concerning their opportunity to observe the driver and the circumstances surrounding their subsequent identification.
The defense focused on the difference between:
Confidence at trial
and
Reliability at the time of the original observation.
The jury was able to consider the officers’ testimony together with the scientific principles explained by Dr. Loftus.
Why Eyewitness Identification Cases Require Careful Investigation
An eyewitness identification should never be evaluated solely by asking whether the witness appears believable.
A witness can be completely sincere and still be wrong.
When identification is disputed, the defense should examine factors such as:
- Length of time the witness observed the person
- Distance between the witness and the person
- Lighting conditions
- Whether the witness’s attention was divided
- Presence of a weapon or perceived threat
- Stress
- Whether the identification was cross-racial
- Time between the event and the identification
- How police conducted the identification procedure
- Information provided to the witness after the event
- Whether witnesses communicated with one another
- Changes in the witness’s description or level of confidence
- Whether video, photographs, or other evidence contradict the identification
In an appropriate case, expert testimony can help a jury understand aspects of perception and memory that are not necessarily obvious from everyday experience.
Not Guilty on All Counts
At trial, Attorney Petro combined cross-examination of the identifying police officers with expert testimony from Dr. Geoffrey R. Loftus concerning the reliability of eyewitness identification.
The jury found Petro’s client NOT GUILTY on all counts.
The verdict meant that a man who had faced a possible sentence of 6 to 30 years in prison was acquitted.
After approximately two years in Jail, he was released and returned home to his family and son.
Eyewitness Identification Can Decide a Criminal Case
When the government’s case depends upon identification, the reliability of that identification may become one of the most important issues at trial.
Police officers and civilian witnesses can make honest mistakes.
The defense must carefully reconstruct the circumstances of the original observation and determine whether factors existed that could have affected perception, memory, or the later identification.
That analysis may require investigation, photographs, video evidence, police reports, prior testimony, cross-examination, and, in appropriate cases, testimony from an eyewitness identification expert.
Experienced Eyewitness Identification Defense Attorney
Michael J. Petro has more than 35 years of criminal defense experience representing individuals charged with serious criminal offenses.
In this case, two Chicago police officers confidently identified Petro’s client as the driver of a vehicle involved in an armed incident. Attorney Petro challenged those identifications through cross-examination and expert testimony concerning human perception and memory.
The jury returned a verdict of not guilty on all counts.
If you are facing serious criminal charges in a case involving a disputed eyewitness identification, contact eyewitness identification defense attorney Michael J. Petro to discuss your case.
Prior results do not guarantee a similar outcome in another case. Every criminal case depends upon its own facts and circumstances.