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Criminal Nuggets

Oct 26, 2016

Clinical Professor of Law Karen L. Daniel and Director of the Northwestern Center on Wrongful Convictions recently sat down with the Criminal Nuggets podcast. 

In Episode 247 (Duration 32:18), the professor provides insight and answers questions trial attorneys may face when litigating eyewitness identification issues.


Clinical Professor Karen L. Daniel

Clinical Professor Karen L. Daniel is a Clinical Professor of Law at the Northwestern Pritzker School of law. She is also Director of the Center on Wrongful Convictions. The Center has helped free numerous wrongfully convicted individuals.

Through her experience in personally handling these cases and supervising her law students the professor has gained a certain expertise in working with eyewitness identification expert witnesses.

What We Cover

Listen in as the professor...

  • Reveals available resources on eyewitness identification
  • Describes her own experiences working with eyewitness experts
  • Breaks down the ground breaking case of People v. Lerma
  • Illustrates possible litigation strategy
  • Demystifies the eyewitness identification report

What Won't Want To Miss

Pay careful attention when Professor Daniel talks about the one motion in limine we should all be making in eyewitness identification cases. The law is not perfect and rule making has not caught up with the research. 

There is one tricky situation where we'll want the careful input of an eyewitness identification expert. Sometimes an expert is not relevant or required. However, sometimes an expert can help guide you and a jury through some tricky terrain. 

Hit the play button above to ensure you capture all this insight.

Eyewitness Identification
Issues Checklist

eyewitness identification issues checklistDownload this checklist of possible eyewitness identification issues that may warn you of problems in your case. This is not an exhaustive list. It's just a place to start. 

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Important Links & References Mentioned

Highlights Right From The Discussion

  There are two indisputable facts about eyewitness identification that supporters and distractors must agree on. One has to do with the nature of the scientific findings and the other has to do with our own perceptions. (Go to 3:05) 

  What an attorney should send to their eyewitness identification expert. (4:47)

  Some of the factors that an expert can help you identify during the actual event are listed here. (5:55)

  When it comes to the police procedures used to facilitate an identification the game is all about discovering what you don't know and scrutinizing what you do. Practical real life examples are given to illustrate. (6:39)

  A little known jury instruction that you can ask for when proper police procedure is not followed. (7:44)

  Why you should  interview eyewitness identification witness for yourself and never just accept the police report version of events.  For example, when witnesses talk to each other that rarely makes into a police report, but there is much more to look out for. (8:22 - 8:34)

  Hints and a suggestion on how to find an eyewitness identification expert. (9:22)

  What to do to make your first meeting or discussion with an eyewitness identification expert witness as productive as possible. (10:46)

  The secret to knowing when you've been tendered an eyewitness identification expert witness report that is on the money and knowing when you have to send it back. (11:42)

  Any good eyewitness identification expert will include a statement about this in their final report. This kind of statement is insurance for improving ultimate admissibility of your expert. (14:02)

  How to respond to the other side's or even the court's objection, "What good are they?" (14:37)

  The true strength and value in People v. Lerma. (15:19)

  What to do with the tricky scenario of where the witness has identified the suspect before any police interaction. Let's face it when the witness knows the suspect there is no place for calling an eyewitness expert witness...but subsequent formalized identifications are irrelevant. (16:09-17:14)

  WARNING: When the witness kind-of-knows the suspect (acquaintance identifications) you better get an expert involved. This is when things really get tricky. (16:09-17:14)

  Do you know about "unconscious transference"? (17:14)

   The truth about People v. Lerma and why innocence workers were nervous when it first went up to the Illinois supreme Court. Hint: we were still talking about acquaintance identifications. (17:38) 

  In a stranger identification case why there should be absolutely no reason why the judge does not admit your eyewitness identification expert witness. (18:06)

  CAUTION: There is a big problem with the Illinois Pattern Jury Instruction on identification testimony. In every case there should be motion to use something different. (19:15-22:00)

  When the very best witnesses are the absolute worst. (23:00)

  How not to put together a lineup.  Police are probably doing this more often than we think. Professor Daniel only became aware of it because she worked with an expert. (24:35)

  The shocking error rate (yet hardly discussed) that an expert can explain to a jury and absolutely has to convince a jury that there are deep flaws in human eyewitness identifications. (25:47)

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