Like many trial lawyers your favorite Clearwater Criminal Defense Attorney has seen many witnesses at trial; none more effective than Eye Witnesses. While working as a prosecutor it was always devastating to deliver the final punch with the Eye Witness leaving the Defense shattered. And no wonder Eye Witnesses are so effective in trials because the Eye Witness is seen by the jury as simply a teller of truth.

Manet's Plum Witness would not be a great eye witness in a criminal trial in tampa bay florida with the absinthe in front of her clouding her memory and testimony for identification of a criminal perpetrator.
Manet, A Plum Witness

Yet Eye Witness testimony is among the most unreliable at trial. Many guilty verdicts that were proven with Eye Witness testimony have been unwound by the Innocence Project thru DNA analysis establishing Defendants’ innocence. In fact the Innocence Project lists Eye Witness Misidentification as being “the single greatest cause of wrongful conviction playing a role in nearly 75% of convictions overturned trough DNA testing.” 

The Misidentification comes from two categories of variables:

1. Estimator variables include simple factors like the lighting when the crime took place or the distance from which a witness sees a Defendant, also the amount of stress during a crime because of force used or the presence of firearms or trauma a witness experiences. 

2. System variables include how law enforcement officers acquire witness memory including lineups and photo packs.

As you can see the ‘system variables’ should be controlled by the Criminal Court System. New Jury Instructions in states such as Florida caution Jurors to be wary of Eye Witness identifications made during criminal trials. Yet one of the confounding things I often see is that Florida Law Enforcement Officers are not required to record witness statements nor statements made by Defendants. Often their notes of what was said by witnesses and Defendants are proven to be wrong.
How reliable is Eye Witness testimony as studied not only be lawyers but by psychologists? Here’s an excerpt from The Problem of Eye Witness Testimony found in The Stanford Study of Legal Studies:

The process of interpretation occurs at the very formation of memory—thus introducing distortion from the beginning. Furthermore, witnesses can distort their own memories without the help of examiners, police officers or lawyers. Rarely do we tell a story or recount events without a purpose…
The act of telling a story adds another layer of distortion, which in turn affects the underlying memory of the event. This is why a fish story, which grows with each retelling, can eventually lead the teller to believe it… it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

Clearly Eye Witness testimony should be viewed with a healthy skepticism, because the goal of a criminal trial must be to provide the Defendant with the fairest trial possible and maybe along the way, to even find the truth.


Clearwater criminal lawyers have long been wary of eyewitness misidentification during criminal trials. Often jurors place far too much confidence in eyewitness identifications despite studies which have shown that misidentification is the leading cause of wrongful criminal convictions in the United States.
The Florida Supreme Court yesterday laid out new jury instructions which should help jurors in making proper evaluations of eyewitness testimony. Press Reports note that Florida Criminal juries will be told by the presiding Judge at the end of each case to take the following factors into consideration: 

File:Joseph Ducreux - Le Discret.jpg; eye witness testimony often leads to false convictions in tampa bay florida criminal cases.
Joseph Ducreux, Discretion, 1790


…whether witnesses are of the same race or ethnic group as those they are identifying, how familiar they are with people they are identifying and whether they relied solely on their own recollection or have been influenced in some way….

To consider the capacity and opportunity of a witness to observe a suspect including length of time, lighting and distance. Jurors also will be told to consider how much time has gone by since an event before identifications are made and any inconsistencies by witnesses.

Although criminal juries won’t be directly warned about proven failures of eye witness identification nor given methodical guidance, this is a long step in the right direction and should serve as a model for other states.
Clearwater criminal attorneys will not only always be permitted to make arguments at trial against eyewitness testimony, but those arguments will now be supported by the jury instructions in all Florida criminal cases.


Many studies show that eye witness testimony is often not as reliable as the witness believes. 

Now the law is catching up to scientific studies. And at least one Clearwater Criminal Defense Attorney believes a recent court opinion should be applied in Tampa Bay Criminal Courts even if it is from the New Jersey Supreme Court. How about a special Florida jurisdiction for what’s right? It’s certainly persuasive. It cites countless studies and scientific research on how memories work and how testimony can be flawed and how juries can make mistakes. In short, the court held:

The current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence. Two modifications to the standard are required. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. Second, the court system must develop enhanced jury charges on eyewitness identification for trial judges to use.

The court is right to look at the suggestiveness of the identification as a factor in reliability. If you need a reliable Clearwater Criminal Lawyer to look at the reliability of a Florida eye witness give me a call.