“You know, I’m getting tired of explaining this stuff to you two every time you come into my courtroom. It’s basic law school stuff. Why do you keep needing me to explain it?”
“And why are all those people watching?”
“And what’s with the crazy lighting? The invite-only rave doesn’t start till 10pm TOMORROW!”
“Oh, uh, sorry, your honor. They said we could come in early to set up the lights, and we had to do a quick check. We’ll, uh, break for lunch before we check the sound.”
So, having the witness observe the suspect with a police officer on the street is suggestive but having him see the suspect at the defense table, knowing he is on trial is not? Again, Get Real!
We read a case in Evidence where a bank teller was asked to identify the robber, and she pointed to the U.S. Marshal. Hilarity ensured as the prosecution scrambled to reestablish her credibility.
So, if the defense knows that this particular witness is going to be called on a particular day, can they stack the defense table with four additional people all dressed the same and looking similar to the real defendant and then ask the witness to ID the defendant? Would a judge ever allow that to happen (I’m sure the prosecution would object).
One problem with that is that you can’t have just anyone sitting at the defense table, just lawyers and the defendant. Another would be finding 4 people who would be willing to take the risk of being identified as having committed a crime in open court (and say, for example, they DO pick doppelganger #2. Guess who’s gonna be on trial next?). Even if it was allowed (and I can’t see why you couldn’t try it), doesn’t seem like a winning move.
You just need to pick alternates who have a solid alibi. Even with an eyewitness identification, I’m pretty sure you couldn’t convict someone who can prove they were in Hawaii at the time of the crime.
I feel like that’s been done in a few lawyer shows/movies. I remember an episode of Boston Legal that flashed back to a legal drama from early in Will Shatner’s career, where he stocked a few lookalikes in the courtroom to make the witness doubt. Good episode (the son of the witness wants to re-try the case, with himself as judge and the bomb he’s wearing as jury).
It’s been done in real life too! Successfully!
Unfortunately, it also normally ends in Contempt for the defense council, but still!
DC is presumably about to argue that a rule you only apply when it won’t change the outcome of might as well not exist. The time when the ID is your only evidence is the time when you ought to subject it to the very highest standard of scrutiny, because it’s maximum stakes and minimum verifiability.
Judge is presumably about to argue that an unreliable method for catching bad guys is better than no method.