Eye witness identification is a tricky thing. So many variables come into play that there is an entire jury instruction given. Things like: whether the witness knew the person, race, length of contact, stress of event, lighting conditions, proximity, suggestability of line up, and how closely the witness was paying attention are just a few of the variables. Needless to say, in jury trials where the witness and the defendant do not know eachother, it is always a stressful moment to ask for the witness to identify the defendant in front of the jury.

Jury trial #12 was all about identification. It involved the robbery of a female college student at night as she and a friend were walking down the streets of downtown Chico at around 2:ooam. A male subject rode his bicycle up behind them. He said, “excuse me” and rode past them on a silver beach style cruiser. A short time later the male on the bike appeared again. The male rode up to the victims, held a knife out and demanded the victim’s purse. She froze, and the male then grabbed the purse off her shoulder. Her friend grabbed her waist to stop her from being pulled over. The force used ripped the strap off the bag allowing the male to ride off, purse in hand.

The police were called and the general description of a white male adult in his late 20’s or 30’s on a silver beach style cruiser was given. They further described the male as wearing shorts and a black t-shirt with no facial hair and no hat. His hair was short and dark. The male held the knife in his right hand. The knife was described as a blue handle knife with a silver blade.

Approximately 2 weeks later the victim contacted law enforcement again. She had seen the person who robbed her riding the same bicycle in downtown Chico. The individual was detained and both victim and her friend identified the male as the robber from two weeks prior in an in field show up.* The bicycle he was riding was also identified. The victim described the bicycle as having a distinctive clicking sound. At the time of the arrest the male had a knife on his person, which was not identified as the knife used.

Interestingly enough, the defendant lived at a house which contained what I would describe as a bicycle graveyard. Approximately 50 bicycles were parked outside the residence of all types and sizes. Defense counsel also knew that this case hinged on identification and an expert was slated to testify regarding the problematic nature of late identifications. I had done my homework on the issue as well and was ready to go in terms of expert opinions on eye witness identification.

We never got to that portion of the trial. First up was our victim. She testified beautifully as to what happened and it was clear that she was terrified still because of the event. The time came to have her identify the defendant as the individual who robber her. When I asked her if she saw the individual in the courtroom, she said, “yes.” I then asked her to describe where he was seated and what he was wearing. Our victim paused and said, “It’s the individual standing next to the clerk in the Sheriff’s uniform.”

“The Bailiff?” I inquired.

“Yes, that’s weird,” said our victim.

I went into preservation mode as I felt defense counsel ramping up-blood was in the water. I followed up with a booking photo of the defendant and confirmed with her both that the individual in the photo was the individual who robbed her and that it was the person she identified prior in the in field show up. Then I asked her again if she saw that person in the courtroom today. Victim again identified the bailiff as the person who robbed her.

The bicycle defendant was riding was physcially brought into the courtroom. Victim identified the bicycle as the one the person rode.

The witness, her friend, was then called to testify. Unfortunately she was unable to identify the defendant or the booking photo as the person who commmited the robbery.

We had lost the case on identification. The case was dismissed.

Some things are entirely out of our control as a trial attorney. Things like identification of the defendant by our witnesses fall on their memory, and ability to recall under stressful and unfamiliar circumstances. In this case, we will never know whether the defendant was the individual that robbed the victim or just a person riding the same bicycle two weeks later in downtown Chico. I’m certain it wasn’t the bailiff.

*An in field show up is a procedure commonly used by law enforcement when they find a person matching the suspect in public. They drive the witness to the individual and admonish them that the person may or may not be the individual they observed commiting the crime. The witness is told it is just as important to clear the innocent as it is to arrest the guilty. From there the witness is asked whether or not the person they are observing is the individual they observed commiting the crime.

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