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Can I Exclude an Eyewitness Identification?

Criminal Defense Lawyer St. Petersburg Florida

Nothing can be worse for a criminal defendant than to have a witness sit on the stand and identify you as the person who victimized them. However, in some situations, you can get an eyewitness identification thrown out of court by arguing that the identification procedure was unduly suggestive. If you succeed, you’ll help your case enormously.

How Police Get Identifications

When called to a crime scene, police will ask eyewitnesses to describe the criminal. Based on this information, the police may zero in on one particular suspect and ask them to come to the station or arrest them. Typically, the police then ask witnesses to come to the station house for an ID.

One common technique is the police lineup. Police will have the defendant stand alongside a few other people who serve as “fillers” and ask the witness if anyone in the lineup looks like the person they saw commit the crime. If the witness identifies the defendant, the police can introduce this identification into court.

Police might also use a photo array, particularly when they can’t find any fillers who look like the suspect. With an array, a witness might be shown six photographs, one of which is of the defendant. The witness is then asked if anyone in the photographs looks like the person they saw commit the crime.

Unduly Suggestive Lineups

Ideally, a witness will compare each person in a lineup (or photo array) to the mental image they have of the criminal. However, witnesses often compare each person in the lineup to each other. Furthermore, witnesses often assume the suspect must be in the lineup—otherwise, why were they asked to come to the police station? Because of these assumptions, the police can unconstitutionally “guide” the witness to one person by making them stand out in some way.

For example, a witness might have described a suspect as a white male in his 20’s—but all of the fillers in the lineup are African Americans in their 40’s. In this situation, a witness might assume the one white guy in the lineup must have committed the crime, and they’ll identify him as the suspect even if they aren’t entirely sure. This type of lineup is highly suggestive because it is highlighting only one person in it.

Keeping out Tainted Identifications

The Constitution’s Due Process Clause protects criminal defendants from unduly suggestive lineups and any mistaken identification that results. Your lawyer can file a pretrial motion asking the judge to exclude the witness identification.

However, the prosecutor might still be able to introduce the positive witness identification if it is otherwise reliable. The judge will have to analyze the following factors:

  • Whether the witness had the opportunity to view the suspect
  • How attentive the witness was during the crime
  • The accuracy of the witness’ prior descriptions of the criminal
  • How certain the witness was in their identification
  • How much time passed between the crime and the identification


A good criminal defense attorney must do more than show a lineup is suggestive. They must also cast doubt on the reliability of the witness identification based on the above factors.

Call a St. Petersburg Criminal Defense Attorney Today

A positive eyewitness identification does not mean you will automatically end up in jail. Instead, a skilled criminal defense attorney can cast doubt on the police’s lineup or photo array to try to get positive eyewitness identifications thrown out of court. Rohom Khonsari, the founder of Khonsari Law Group, is a former prosecutor who understands how suggestive lineups can unduly influence a witness. Call us for a free consultation at (727) 269-5300 or fill out our online contact form.

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