One of the basic arrows in the quiver of the trial-level defense attorney is the identity defense, which is simply the argument that the police arrested the wrong person. Given the well-documented foibles of eyewitness identification, the potential for police bungling of an investigation, and the sheer difficulty of turning sprawling, real-world evidence into a coherent narrative, identity defenses often make sense. They present a simple and emotionally compelling story to the jury, one that can provide a pathway to acquittal even if the elements of the offense are well established.
Going “all in” on an identity defense creates serious problems on appeal when the jury does not agree with the argument.
An identity defense case often makes for a lousy appeal, however. That’s because, in many identity cases, defense counsel has bet the entire case on the question of identity, which is for the jury to decide. The court of appeal will not revisit that evidentiary call once the jury has made it. The hooks for a good legal argument on appeal from such a case are consequently going to be few and far between. It will also be very hard to show prejudice, even if an error can be identified, because almost all legal disputes will appear, in retrospect, to have been tangential to the essential question of the case: whodunnit.
One way of setting up a stronger appeal in an identity case would be to present alternative arguments to the jury: “My client didn’t do it. But even you think he did it, the elements of the crime aren’t satisfied.” Sounds great in theory. But trial lawyers know that most jurors are fairly concrete people. Jurors want to know what “really” happened, not just what might have happened. They might well be turned off or even offended by the type of academic hair-splitting that comes along with presenting alternative legal claims.
A more practical approach, which I would love to see adopted more widely at the trial level, is for defense counsel in identity cases to do a more vigorous job of litigating those aspects of the case that can be handled out of the presence of the jury. The arguments in limine and the discussion of jury instructions, in particular, can and should set up good appellate issues even in a case where the only claim that will be made directly to the jury has to do with identity. Because prejudice has to be shown on appeal, defense counsel also shouldn’t shy away from attacking prosecution witnesses in vulnerable areas, even if those vulnerabilities don’t go directly to the defense theory of mistaken identity.
In other words, even if the jury needs to be told a simple story to keep the defense theory coherent, defense counsel must also keep the big picture in mind. Some identity defenses fail. That potential for failure means that the trial strategy should not be completely monolithic or oversimplified, even when identity is the core of the defense argument.