If you’ve handled a few criminal cases you’re familiar with the misidentification defense. Some other guy did the crime and one, two, or eight people saw that other guy doing the crime but they all mistakenly think your client is the person who did it.
At its most basic level this defense is very factual. It usually involves highlighting how descriptions of the suspect have changed over time and how the descriptions do not necessarily match your client. Most lawyers, however, stop there. If you stop there, though, you are selling your misidentification defense short, here is why:
By Just Sticking To The Facts You Fail To Capitalize On The Moral Advantage Provided By Distancing
In every misidentification case it is usually undisputed that someone committed the crime charged. If you stick to just attacking the faulty identification you miss out on the power of distancing. Here is what I mean by that–people think that if you are against something, or someone, you would not have a problem calling them out. One example of this is when ex-president Obama was repeatedly criticized for not using the phrase “radical Islamic terrorists” to describe ISIS and other groups. The implication was that his refusal to call the groups that meant that he was somehow partial to radical Islam.
Whether you think that ex-president Obama was partial to radical Islam or not is not the point. The point is that the refusal to condemn “radical Islam” triggered in a lot of people a notion that he was on the same side as those radical Islamists. This is important for us as trial lawyers because the inverse is also true. Meaning, when you have a misidentification defense you can enhance that defense by condemning the actions of those criminals. By highlighting that the person or people who committed that horrendous crime deserve to be punished to the full extent of the law you subconsciously show the jury that your client had nothing to do with it. The jury will think that if your client was the person who committed that horrendous offense you would not be advocating for his or her punishment.
By Condemning Those Criminal You Show The Jury You’re A Good Guy
Most of the time jurors will come into a trial thinking that criminal defense lawyers are scum. They have a common misconception that criminal defense lawyers are just out there getting terrible people “off” on technicalities. Whether this is true or not is a matter for another day, but this misconception is one that you have to acknowledge. By condemning what those criminals did. By making sure the jury knows that you are not in any way understanding or accepting of what they did. By letting the jury know that you sympathize with what happened to the victim. By making sure that the jury knows that you dislike those criminals as much as they do you can make them feel like you are more like them (the jury) and less like who they thought you were (slimy criminal defense lawyer). Not only that, but you also indirectly advance your position that your client was not the perpetrator of this crime. He was not the criminal or otherwise you would not be standing by him advocating for him.
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