No Eyewitness ID Expert? Ineffective Assistance of Counsel.

Or at least in California, in this unpublished 2002 decision (PDF) from People v. Jason Kindle, where the state appellate court overturned a conviction on grounds that trial counsel’s failure to call an eyewitness ID expert in a case where identity was a pivotal issue was ineffective assistance of counsel.

The case involved an office store robbery by a man described as “heavily disguised,” where two eyewitnesses to the initial incident claimed to see the same man outside the store on a future date, and claimed that he was a man who worked at the same store as a janitor. On the future date, however, the defendant was clearly visible on a surveillance tape at his other place of employment, from 20 minutes before through 20 minutes after the time he was alleged to have appeared at the robbery site on that same day.

The police conducted a photo lineup in which the defendant was in the pole position, wearing his blue work shirt with the name of the contractor through which he was employed as a janitor at the office store that was robbed — the same shirt in which his co-workers regularly saw him at work. The witnesses knew their coworker was a suspect by the time they were shown the photo array, though none of them thought it was him at the time of the incident (in fact, they initially agreed the culprit was taller). In other words, they had little difficulty selecting their coworker, in his work uniform, from a lineup otherwise comprised of strangers.

Other incriminating facts “linking” Mr. Kindle to the crime included the fact that he owned a bike (so did the robber!), gave one of his coworkers “an eerie scary type look” a couple of months after the incident, and sight of his face caused one witness to “feel the same pain” she felt the day of the robbery. More where that came from in the decision (PDF), which makes for a pretty interesting read.

With good reason — though in the only decision of its kind that I’ve come across — the appellate court overturned the conviction, on grounds that trial counsel’s failure to call an expert on the problems with eyewitness identification in this case constituted ineffective assistance of counsel.

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