An Illinois lawyer once dared to pull a fast one on the court, in an effort to help his client win his case. The New York Times reported the event
. The lawyer, believing that in-court ID’s are not always the most reliable, and some might even say they can be considered biased since it is usually the defendant sitting next to the defense attorney at the defense table, took a risk while taking testimony from the only eye witness in the matter, the arresting police officer. The lawyer had his law clerk sitting next to him, and in similar clothes had the defendant sit elsewhere in the courtroom. When asked to identify the defendant, whom he had just been testifying about in court, the officer selected the clerk sitting at the defense table. The defendant won that case. However, the lawyer actually was fined and held in criminal contempt of court. The court was angry not to have known of the “stunt” in advance. The lawyer challenged his contempt finding, and lost, but his efforts have not gone unnoticed.
This case reminds defense lawyers and prosecutors that in-court identification, and for that matter, any identification, is not always the most trustworthy. They can be fallible and people can make mistakes. Further, this case also begs the question: is it wrong to always have the defendant sit next to the defense lawyer at trial? Does this bias the defendants? If the case hinges upon identification, is it really fair to have that individual sit where everyone assumes the defendant sits, so they don’t really have ID the individual, just the seat? These are all good questions lawyers should ask when representing their client. Every case is different, and every lawyer should treat it that way. But they should also remember that sometimes it is worth it to change things up, for the benefit of the client.