Eyewitness identification ("EyeID") cases require prompt attention. Do not wait; critical evidence will be forever lost. Assuming you hire the right lawyer, she will begin her investigation immediately because she understands that human memory is malleable and that it is highly susceptible to the suggestions and the repeated exposure that is inherent in the judicial process. Her investigation will also focus on finding credible evidence to strengthen your alibi before it is lost (e.g., surveillance video). Documenting your alibi with independent proof, preserving witness uncertainty, and their vague initial description of assailant are high priorities in any EyeID case.
Find at least 3 experienced criminal defense attorneys
Ask everyone you know if they know of a good criminal defense lawyer whom they would recommend. Search the internet and this site for attorneys with successful experience litigating EyeID cases in your area. Review attorney web sites and online profiles to see if there is any discussion of recent misidentification litigation. Once you have generated a list of 3 to 5 promising possibilities, set an appointment to discuss the case with them. Many criminal defense attorneys will offer a free consultation for this purpose. Any conversation with a prospective lawyer is completely confidential, so you can - and should - speak candidly.
Prepare a summary of important case details in advance
If you take time to think about and write down all the relevant facts of the case before you meet with any lawyers, you will be able to quickly convey these critical facts in the first few minutes of the interview. This will free up the remaining time for you to learn as much as you can about this lawyer's skill and knowledge of eyewitness identification issues. The facts you should convey are 1) THE CHARGES; 2) THE FACTS OF THE CRIME: what did true perpetrator do, where did it occur, was a weapon used, time of day, how long did crime last; 3) EYEWITNESS DETAILS: number of witnesses who observed the crime, how many ID'd you, how did they ID you (photo lineup, field show up, live lineup), did any witness fail to make an ID; 4) DETAILS OF YOUR ALIBI: where were you when this crime happened, what were you doing, who was with you, who else knew of your location even if they were not with you, did you make any purchases or otherwise leave a paper trail.
Ask open-ended questions to get the most revealing answers
The purpose of consulting 3 or more attorneys is that you want to be able to do some comparison shopping. If your questions suggest the answer you are looking for, you are increasing the odds that the lawyer will just say what you want to hear. So, instead of asking "Will you start investigation right away?" ask "Can you tell me how you would handle this case?" Instead of "Will you personally visit the crime scene?" ask "What type of investigation is needed in a case like this?" Prepare a list of open-ended questions in advance to bring with you during each consultation. Make sure you ask each lawyer the same questions. This will help you make the comparison. You should see noticeable differences in the quality and scope of their answers. The topics listed in the remaining steps are critical areas of inquiry.
A word about fees and other costs
How much this is going to cost you is an important question and probably high on your list. But, you would be wise not to let price be the deciding factor. There are far more important issues to consider; namely, whether the lawyer has the necessary knowledge and skill to successfully litigate your EyeID case. You should expect to pay fees for the attorney, an investigator, and an expert - with the attorney fees being the biggest expense. Attorneys can charge by the hour or a flat fee. Some lawyers charge a flat fee up front for any work done up until trial and then a daily rate for each day in trial (e.g., $20,000 + $800 per day of trial). Don't assume highest price is the best. Expect to go to trial; misidentification cases are seldom dismissed unless your attorney is able to uncover proof an airtight alibi, e.g., video tape showing you were in a different city/state/country when crime was committed. Find out up front what it will cost to fight it all the way to trial.
Find out if the lawyer has successfully tried EyeID cases
EyeID cases are very different than other types of criminal trials. Your lawyer will need to understand the relevant scientific studies, the problems with police procedures that can produce misidentifications, jurors' misconceptions about how memory works, and jurors' tendency to equate witness confidence with accuracy. In addition, your lawyer will need to know how to show the court that the identification procedure was unnecessarily suggestive so that it should be excluded. NUMBER OF EYEID TRIALS & RESULTS: One indicator of your lawyer's skill is prior success. Ask how many EyeID cases s/he has tried and won. Don't just take the lawyer's word for it; verify it. If the lawyer says, I've tried 5 in the past year and all were acquitted, ask the lawyer to tell you about them and how he won it. An inability to recall the details of the case or talk about what contributed to the win should be a warning sign. Ask for client references.
How would the lawyer investigate your innocence?
Quality prompt investigation is critical. Spend a lot of time discussing this aspect of the representation. Witness memory will change as time goes by: witnesses are influenced by information that they received before and after the ID and will start incorporating your physical and facial features into their description of the true perpetrator. As trial nears, the witness will become even more convinced that you committed the crime, even though she was tentative when she first ID'd you. For those reasons, it is imperative that your lawyer start an investigation right away. TO FIND OUT IF YOUR LAWYER REALLY UNDERSTANDS THIS, consider asking questions along these lines: What needs to be done to prepare this case for trial? (If s/he doesn't mention investigation, do NOT hire him/her.) Why is investigation so important? Can we wait to start the investigation until I can get my money together? (If she says yes, do NOT hire this lawyer.) What would the investigation include?
What does the lawyer know about the science relating to EyeID issues?
There is a lot that a lawyer needs to learn in order to successfully handle an EyeID case. To find out how much this lawyer has done to educate herself, ask: Have you attended any conferences or training that dealt specifically with EyeID issues? When? Where? Who hosted it? (Verify later.) What's the difference between EyeID cases and other cases? Do you belong to any organizations that specialize in EyeID cases? Have you ever consulted with an EyeID expert? Are problems with EyeID a matter of common sense? (It is more complicated than common sense because jurors and the court have a lot of misconceptions about what affects accuracy and memory.) What are the best practices? (There are six.) What does weapon-focus mean? What is post-event contamination? What is transference? Is blind or non-blind better? Is sequential or simultaneous better? What is inattention blindness? What does relative judgment mean? What is cross-racial ID? See links below for more information
Does the lawyer plan to educate jurors by using EyeID expert, best practices, and tailored jury instructions?
The average juror is very persuaded by a confident eyewitness. Jurors assume that a witness would not identify the defendant in court unless she was sure he committed the crime, and eyewitnesses genuinely believe that they picked the right guy. Neither the witness nor the jury understands that memory can be influenced by later events and that bad police ID procedures can increase the odds that an innocent person will be falsely accused. The lawyer's job is to educate the jurors by using science, established best police practices, and specially-tailored jury instructions. FIND OUT IF THE LAWYER UNDERSTANDS THIS: Why would the witness falsely ID me? Is the witness lying? How come they said they're sure it was me? How are you going to convince the jury I didn't do this? If no mention of experts, jury instructions, or police practices, do NOT hire! If mentions expert, ask: Have you ever used expert? Why do we need an expert? If police practices mentioned, ask him/her to explain.
Would this lawyer try to exclude the EyeIDs?
Many things can happen during the identification which increased the chances of misidentification. If the identification process was so unnecessarily suggestive that it rendered the identification unreliable, you are entitled to have it excluded. Your lawyer would file a written motion and the court would conduct an evidentiary hearing - before the trial - at which time the eyewitness and police officers would testify about the identification. There are times when you might not have a good chance to win, but it is still a good idea to run the motion. The information learned during this hearing can be very useful at trial. Ask the lawyers you interview: Is there any chance we can get the ID's excluded? How would do that? Would it make sense to try in this case? If not, why not? (Not wanting to waste money is not a good reason; not wanting to annoy the prosecutor or judge is not a good reason.) What are some advantages to running the motion even if we don't have a good shot?