Challenging Eyewitness Identifications in Criminal Cases (On Demand Seminar)

MCLE Credits: 2.0
Ethics Credits Included: 0.0

MCLE Credit: 2.0 (Ethics: 0.0)
Live-Interactive Credit: 0.0
VIDC Re-Certification Credit: 2.0 (VIDC Information)
Price: $149 (Includes a downloadable audio version.)
Viewable Through: 08/31/2020


A pre-recorded streaming video replay from the August 2017 webcast, Challenging Eyewitness Identifications in Criminal Cases.

Topics covered include:

  • Review the due process test in Virginia, and illustrative cases
  • Learn how to use eyewitness experts to challenge eyewitness identifications
  • Discover the ways to challenge the procedures used to obtain the identification
  • Become familiar with the best practices on eyewitness identification procedures
  • Learn how to get the most favorable jury instruction
  • Review the state of scientific research on perception and memory

Eyewitness identification has long been at the heart of many criminal investigations and trials. A witness’s identification of the defendant as the person who committed the crime often can be enough, by itself and absent any other evidence, to ensure a conviction. But even assuming a good-faith, credible witness, how good are most identifications of strangers? How has the law changed over the years? What have scientists discovered about how eyewitness memory is processed and retained—and how it can be altered due to even inadvertent suggestion from police?

Faced with cases in which it was alleged that tactics used by police and prosecutors improperly influenced the result of eyewitness identifications, the U.S. Supreme Court in the late 1960s crafted rules based on due process considerations—which it had not addressed again until 2012. In Perry v. New Hampshire, the Court broke its long silence to largely affirm its previous views on the subject. This is in contrast to the New Jersey Supreme Court, which in 2011 sent shockwaves through the criminal law world when it examined three decades of scientific evidence suggesting that eyewitness identifications are inherently fragile evidence, and that special protections are therefore required. More recently, the Oregon and Massachusetts Supreme Courts have also revamped their rules for eyewitness evidence. While not the law in Virginia, these cases offer a detailed guide to the research on eyewitness memory and instructive lessons on how defense counsel may successfully challenge the testimony of eyewitnesses.

Our two speakers are exceptionally well qualified to discuss these issues. The research on eyewitness misidentifications presented in Professor Brandon Garrett’s book Convicting the Innocent: Where Criminal Prosecutions Go Wrong was cited by the New Jersey Supreme Court and by the dissent in Perry. Professor Garrett served on the National Academy of Sciences Committee that issued an important report, “Identifying the Culprit,” in 2014, assessing the scientific research studying eyewitness memory and making recommendations for researchers and for the criminal justice system. David Heilberg has years of experience defending high-profile criminal cases throughout Virginia. He is a co-editor the Virginia CLE® practice handbook Defending Criminal Cases in Virginia, and author of its “Eyewitness Identification” chapter. Together, these speakers will ensure your understanding of the current law, and suggest new ways to deal with this fascinating issue.





Brandon Garrett, University of Virginia School of Law / Charlottesville
Brandon Garrett teaches law at the University of Virginia School of Law, where he has been a professor since 2005. His research on our criminal justice system has ranged from the lessons to be learned from cases where innocent people were exonerated by DNA tests, to research on false confessions, forensics, and eyewitness memory, to the difficult compromises that prosecutors reach when targeting the largest corporations in the world. A new book titled End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, examining the implications of the decline of the death penalty, is forthcoming in Fall 2017 from Harvard University Press. In 2011, Harvard University Press published Professor Garrett's book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, examining the cases of the first 250 people to be exonerated by DNA testing. That book was the subject of a symposium issue in the New England Law Review, and received an A.B.A. Silver Gavel Award, Honorable Mention, and a Constitutional Commentary Award. It is has been translated for editions in China, Japan, and Taiwan. In 2013, Foundation Press published a casebook, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation, which he co-authored with Lee Kovarsky. Professor Garrett's new book examining corporate prosecutions, titled Too Big to Jail: How Prosecutors Compromise with Corporations, was published by Harvard University Press in Fall 2014. His law review articles can be downloaded on SSRN.

Professor Garrett's work has been cited by courts, including the U.S. Supreme Court, lower federal courts, state supreme courts, and courts in other countries, such as the Supreme Courts of Canada and Israel. He frequently speaks about criminal justice matters before legislative and policymaking bodies, groups of practicing lawyers, law enforcement, and to local and national media. He attended Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating, he clerked for the Honorable Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit. He then worked as an associate at Neufeld, Scheck & Brustin LLP in New York City.

David L. Heilberg, Dygert Wright Hobbs & Heilberg / Charlottesville
David Heilberg has more than 38 years of experience frequently handling criminal trials, civil trials, and appeals in both the state and federal courts in an area of roughly 60 miles in every direction around Charlottesville throughout Central Virginia and the Shenandoah Valley. He has tried more than 100 cases to juries, including capital murder charges. Mr. Heilberg was the 2011 President of the Virginia Association of Criminal Defense Lawyers (VACDL). His practice areas include adult and juvenile (Virginia and federal); criminal; capital murder; DUI; traffic; personal injury; and civil trials and appeals. Every year since 2011, Mr. Heilberg has been recognized by Super Lawyers as among the top 5% of criminal defense attorneys in Virginia. He received his J.D. from Washington & Lee University, where he taught trial advocacy as adjunct faculty. He started his private law practice in Charlottesville in 1982 after prosecuting in Harrisonburg and Rockingham County following his law school graduation in 1979.

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