Identification in a criminal case is an investigative action in which a witness, a victim or another participant in the proceedings points to a specific person as someone involved in the commission of a crime. The essence of the procedure is that the identifying witness compares the people presented to him with the image preserved in his memory and draws a conclusion as to whether or not they are the same person. It is this conclusion that is recorded in the record of the procedure and may subsequently be used as evidence.
The importance of identification can hardly be overstated. In situations where there is no direct physical evidence, video footage or confession, the results of an identification often become one of the central elements of the body of evidence. Whether the prosecution will be able to use its results in court, or whether the defence will succeed in having the record declared inadmissible evidence, depends on how correctly the procedure was conducted.
The identification procedure is used in a wide variety of categories of cases. These may be crimes against the person, property crimes, cases involving violations of traffic rules and many others. In each case identification serves the same purpose — to establish whether a particular person recognises the individual presented to him. At the same time, the law imposes strict requirements on how this procedure is conducted, and a breach of them casts doubt on the reliability of the entire result.
Identification may be carried out in respect of living persons, from photographs and, in certain cases, in respect of other objects. Each of these forms has its own features and its own risks. Understanding these features is essential for any participant in criminal proceedings who is faced with this investigative action.
In Moscow, numerous identifications are carried out every day in the course of criminal investigations. Practice shows that it is at this stage that procedural errors and violations are most often committed, which later become the subject of disputes in court. That is why knowing the rules for conducting identification and being able to detect deviations from these rules in good time play an important role in protecting the rights of participants in the proceedings.
Why identification is carried out and what role it plays
The main purpose of identification is to verify and consolidate the testimony of a person who has previously described the appearance of an alleged participant in the crime. The investigator compares the verbal description given by the witness or victim with real people and establishes whether the identifying witness is able to point confidently to a specific person. If the identification is successful from the prosecution's point of view, this strengthens the investigation's position. If, however, the identifying witness does not recognise anyone or points to a different person, this may significantly weaken the evidence of involvement.
Identification also serves as a way of testing the investigation's theory. Sometimes it is carried out not only in respect of the suspect but also in respect of other persons in order to rule out an error. In some cases identification is organised a second time if the first one was conducted with violations or produced an ambiguous result.
From the defence's point of view, identification is a moment when the weakness of the body of evidence can be recorded. If the procedure is conducted with violations, a criminal defence attorney in Moscow obtains grounds for a motion that the evidence is inadmissible. Even if the identification formally took place, defence counsel may call its reliability into question by pointing to shortcomings in the selection of the persons presented, the conditions under which it was carried out or the drafting of the record.
Who takes part in identification and what their rights are
Several categories of persons take part in identification. The identifying witness is the person who must point to an individual known to him. This is usually a witness or a victim. The person to be identified is the individual presented for identification. Most often this is the suspect or the accused. The persons presented alongside are people placed next to the person to be identified in order to create conditions for comparison. The attesting witnesses are disinterested citizens who observe the course of the procedure. The investigator organises and conducts the identification. Defence counsel is entitled to be present and to monitor compliance with the law.
Each of the participants has certain rights. The person to be identified has the right to choose his own place among the persons presented. He is entitled to make remarks, which must be entered in the record. The identifying witness is obliged to give truthful testimony and to explain by what features he recognised the person. The attesting witnesses confirm that the procedure took place and that there were no obvious violations. The attorney ensures that all requirements are complied with and records any deviations.
A violation of the rights of any of the participants may become grounds for challenging the results. This applies in particular to the rights of the person to be identified and of defence counsel. If a person was not informed of the right to choose a place or was not given the opportunity to make remarks, that is already a procedural defect.
Specific features of the attorney's participation
An attorney at an identification performs a supervisory function. He checks whether the legal requirements concerning the composition of the persons presented, the conditions of the procedure and the drafting of the record have been met. Defence counsel is entitled to file motions, make remarks and demand that they be entered in the document. The presence of an attorney often disciplines the investigator and reduces the likelihood of gross violations. The services of a criminal defence attorney include precisely this kind of work at the preliminary investigation stage.
How the identification procedure must be conducted under the law
The procedure for conducting identification is regulated in detail by criminal procedure legislation. Compliance with the established sequence and conditions is mandatory. Any material deviation may lead to the record being declared inadmissible evidence.
Before the procedure begins, the investigator explains to all participants their rights and obligations. This applies to the attesting witnesses, the identifying witness and the person to be identified. The explanation must be complete and comprehensible. After that, the person to be identified is invited to take any place among the persons presented. The right to choose the place belongs to him, and he may not be deprived of this right.
The persons presented are selected on the basis of their outward resemblance to the person to be identified. Height, age, build, hair colour, the presence or absence of facial hair, distinguishing features and even the type of clothing are taken into account. If the person to be identified stands out sharply from the others, the results of the identification lose their reliability. There must be at least three persons presented, not counting the person to be identified.
An important condition is that the identifying witness must not see the person to be identified before the procedure begins. Any prior encounter, accidental or intentional, casts doubt on the objectivity of the subsequent identification. The investigator is obliged to ensure isolation and to exclude the possibility of such contact.
During the procedure itself, the identifying witness is asked whether he recognises any of the persons presented. If he points to a person, he is asked to explain in detail by what features the recognition occurred. These explanations are recorded in the record as fully as possible. Bare assertions without specifics significantly reduce the evidential value.
The entire course of the identification is reflected in the record. The document states the details of all participants, a description of the persons presented, the content of the questions and answers, and the remarks of the parties. At the end of the procedure the record is signed by everyone present. Defence counsel's remarks must be attached to it.
- A full explanation of rights to all participants before the action begins
- Granting the person to be identified the right to choose his own place
- Selection of the persons presented on the basis of outward resemblance
- Exclusion of prior contact between the identifying witness and the person to be identified
- Detailed recording of the identifying witness's explanations of the features
Compliance with these requirements constitutes the minimum standard of lawfulness. In practice, deviations from this standard occur regularly, which is why oversight by the defence takes on particular importance.
In-person identification and identification from photographs
The law allows two main forms of identification — presenting the person directly and identification from photographs. In-person identification is considered preferable, since it gives the identifying witness the opportunity to see the person in three dimensions and to assess his height, build and bearing. Identification from photographs is carried out only when presenting the person in person is impossible for objective reasons.
In identification from photographs, the requirements for selecting the images are even stricter. The photographs must be of the same format, taken at roughly the same time and of comparable quality. They must depict people who resemble the person to be identified in appearance. The use of photographs of different quality or with obvious differences in shooting conditions creates grounds for a challenge.
An attorney present at an identification from photographs checks all the images, records their characteristics and, where necessary, points out violations. If the procedure has already taken place without defence counsel, the work of identifying shortcomings has to be done on the basis of the case file, which is considerably more difficult.
Additional conditions for conducting the procedure
Identification must be carried out in conditions that allow the persons presented to be viewed objectively. Lighting, distance and the absence of interference all affect the possibility of correct perception. If the conditions are clearly unfavourable, defence counsel is entitled to draw attention to this and have it reflected in the record.
In some cases the course of the identification is video-recorded. A motion for the use of technical recording equipment may be filed by defence counsel. A refusal to grant such a motion without reasons may also be taken into account when assessing the admissibility of the evidence.
What violations are most common when conducting identification
Violations in the course of identification in a criminal case vary in nature. Some concern the selection of the persons presented, others the conditions of the procedure, and still others the drafting of documents. All of them are capable of affecting the court's assessment of the results.
The most common violation is the lack of genuine outward resemblance between the person to be identified and the other persons presented. The investigator selects people without due attention to height, age, hair colour, the presence of a beard or moustache, or features of clothing. As a result, the person to be identified stands out, and pointing to him loses its persuasiveness.
Another frequent violation is showing the person to be identified to the witness beforehand. This may happen accidentally while moving along the corridors of the building, or intentionally. Proving such a fact is difficult, but if defence counsel is present from the very beginning, the chances of recording the violation increase.
Prompting during the procedure also occurs. It may take the form of glances, gestures, intonation or even the wording of questions. The attesting witnesses by no means always notice such actions. The attorney must watch every movement and word of the investigator.
An incomplete explanation of rights to the participants, especially to the person to be identified, creates a separate ground for objections. If a person was not told of the right to choose a place or was not informed of the possibility of making remarks, that is a procedural defect.
Poor-quality drafting of the record is another typical problem. Important details are missing from the document, the defence's remarks are not recorded, and the description of the persons presented is too general. Such a record is easier to criticise in court.
- Lack of outward resemblance between the persons presented
- Prior contact between the identifying witness and the person to be identified
- Prompting and suggestive actions on the part of the investigator
- Incomplete explanation of rights to the participants in the procedure
- Superficial and incomplete drafting of the record
Each of these violations may in itself serve as grounds for a motion of inadmissibility. Taken together, they significantly increase the defence's chances of having the evidence excluded.
How to record violations directly during the procedure
The most effective way of dealing with violations is to record them immediately. The attorney makes oral remarks, which must be entered in the record. If the investigator avoids entering the remarks, defence counsel draws up a separate written statement and ensures that it is attached to the case file.
After the procedure ends, the attorney obtains a copy of the record and checks its content against what actually took place. Any discrepancies are recorded additionally. This work creates the basis for a subsequent challenge.
Why the presence of an attorney at an identification is particularly important
The presence of defence counsel at an identification ensures real oversight of compliance with the law at the moment the evidence is being created. Without an attorney, a participant in the proceedings is left alone with the investigation, and the likelihood that all requirements will be met decreases.
A criminal defence attorney in Moscow knows exactly which details need attention. He checks the composition of the persons presented, the conditions of the procedure, the investigator's conduct, the completeness of the explanation of rights and the quality of the record. None of this can be done with the same effectiveness once the procedure is over.
The mere presence of defence counsel often changes the investigator's behaviour. When an attorney is in the room, the likelihood of gross violations decreases. Every action is recorded and may be used later.
Legal assistance in criminal cases is most effective when it is provided in good time. Identification is a classic example of an action where defence counsel's late arrival limits the defence's options. An urgent attorney in Moscow can be called even when the procedure is scheduled unexpectedly. Round-the-clock availability makes it possible to intervene promptly.
Many people decline the services of an attorney at this stage, expecting the procedure to go smoothly. Practice shows that it is precisely in such cases that far more effort later has to be made to challenge a result that has already been recorded.
Consequences of the absence of defence counsel
If an identification is conducted without an attorney, the possibilities for challenging its results narrow. One has to work only with the record and the testimony of the participants. Proving the lack of resemblance between the persons presented or the presence of prompting becomes more difficult. By the time of the trial, witnesses and attesting witnesses often remember the details poorly.
That is why calling an attorney before the procedure begins remains the most reliable way of protecting one's interests.
What the attorney monitors during an identification
Defence counsel's work at an identification is systematic. The attorney checks several key aspects in turn.
First, the composition of the persons presented is assessed. Age, height, build, hair colour and length, the presence of facial hair, distinguishing features and the type of clothing are checked. If there is no resemblance, a demand for replacement is made.
Next, the conditions of the procedure are monitored: lighting, distance and the ability to view the faces freely. Unfavourable conditions are reflected in the remarks.
The investigator's conduct is under constant observation. Any gestures, glances or intonation capable of influencing the identifying witness are recorded.
The completeness of the explanation of rights is checked separately. Particular attention is paid to the rights of the person to be identified.
The content of the record is checked against the actual course of the procedure. Defence counsel ensures that all material remarks are entered.
- Assessment of the outward resemblance of the persons presented
- Monitoring of the conditions in which the identification is conducted
- Observation of the investigator's actions
- Checking the completeness of the explanation of rights
- Checking and correcting the record
Each of these elements may prove decisive when the court subsequently assesses the evidence. That is why an attorney at an identification works with the utmost attention.
Rights of defence counsel during the procedure
The attorney is entitled to ask questions, file motions, make remarks and demand that they be reflected in the record. He may file a motion for video recording to be used. All these rights are exercised actively. Passive presence does not produce a sufficient effect. An experienced trial defence attorney uses the full range of options provided by the law.
How to challenge the results of an identification
Challenging the results of an identification begins at the preliminary investigation stage and continues at the court hearing. The ground is a material violation of the procedure that affected or could have affected the reliability of the result.
The defence prepares a motion to declare the identification record inadmissible evidence. All recorded remarks and explanations and, where necessary, additional materials are attached to it. The court assesses the arguments and decides whether the evidence may be used.
If the court agrees with the defence's position, the record is excluded. This often leads to a weakening of the prosecution's entire body of evidence. In some cases, where the identification was the key evidence, the exclusion of the record has significant consequences for the outlook of the case.
An attorney's services in criminal proceedings include full preparation for such a challenge: analysis of the case materials, preparation of procedural documents and representation in court. A criminal defence attorney determines the cost of services based on the volume of work and the complexity of the particular situation.
Time limits for a motion of inadmissibility
A motion of inadmissibility may be filed both during the investigation and in court. An early motion is preferable, since it makes it possible to influence the formation of the body of evidence before the case is sent to court. A good attorney in Moscow takes into account the practice of specific courts when choosing tactics.
The impact of identification on the further course of a criminal case
The results of an identification can change the dynamics of an investigation. An identification that is successful from the prosecution's point of view strengthens the investigation's position, may influence the choice or modification of a preventive measure and may speed up the referral of the case to court. A challenged or excluded identification, on the contrary, weakens the evidence of involvement and forces the investigation to look for additional corroboration.
The impact of identification is particularly noticeable in cases where there is little other direct evidence. In such situations the testimony of an eyewitness, supported by the results of an identification, takes centre stage. That is why the defence during the identification and the subsequent work on challenging its results often prove more important than participation in individual court hearings.
A single flawed identification sometimes destroys a significant part of the prosecution's case. That is precisely why the defence's oversight of this procedure is of strategic importance.
The role of identification in different categories of cases
In cases of crimes against the person, identification often plays a decisive role. In property crimes its importance may be somewhat smaller, but it is still significant. Identification also occurs in cases involving road traffic accidents and requires the same careful attention. In any event, this procedure must not be ignored.
Typical mistakes of attesting witnesses and investigators
Attesting witnesses and investigators make mistakes that are later used by the defence. Attesting witnesses sometimes sign the record without looking into the details and fail to notice the lack of resemblance between the persons presented or any prompting. By the time of the trial they may give contradictory testimony.
Investigators, under a heavy workload, often neglect the requirements for selecting persons, fail to ensure isolation before the procedure begins and draft the record superficially. Pressure on the identifying witness, direct or indirect, also occurs and, once recorded, seriously discredits the results.
Errors in drafting the record — the absence of precise details of the persons presented, a general description of appearance, ignoring the defence's remarks — create additional vulnerabilities. The attorney's task is not to miss these errors and to use them properly.
Using the investigation's errors in the interests of the defence
All violations identified are documented and form the basis of motions and submissions. It is important not merely to point to a violation but also to show how it affected the reliability of the result. It is precisely this kind of argument that increases the likelihood of the court agreeing with the defence's position.