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)
Designation Credit: 2.0 Trial Practice/Litigation (Designations Information)
Price: $149 (Includes a downloadable audio version.)
Viewable Through: 04/30/2024


A pre-recorded streaming video replay of the April 2021 webcast, Challenging Eyewitness Identifications in Criminal Cases.

Topics Covered

  • 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
  • Hear how the new July 2020 legislation can affect eyewitness identification cases

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. So where does the law stand at this point on this topic?

Virginia now has aspirational regulations to modernize eyewitness identification procedures that provide a blueprint for challenging questionable police investigations that deviate from these rules. Our two speakers are exceptionally well qualified to discuss these issues. Effective July 2020, there is new legislation allowing for ex parte requests for experts for indigent criminal defendants. You will hear how to make an ex parte request for a memory expert and what you can do to preserve the issue in the event the court does not approve funds for an expert. This seminar also provides the opportunity to:

  • 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
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Deirdre M. Enright, The Innocence Project at UVA School of Law / Charlottesville
David L. Heilberg, Attorney at Law / Charlottesville


Deirdre M. Enright, The Innocence Project at UVA School of Law / Charlottesville

In June of 2008, Deirdre Enright opened The Innocence Project at UVA School of Law. What started as a clinic of 12 students and one Director has now added a second pro bono clinic with 45 law students and a wait list, a second Director, an administrative assistant and Fellow who acts as a staff attorney for two years.  Before that, Professor Enright worked for the Virginia Capital Representation Resource Center off and on for twenty years, taking an extended sabbatical to represent Darrell D. Rice when he was charged with federal capital murder; those charges were ultimately dropped pretrial.  Professor Enright attended UVA School of Law (J.D. 92) and Northwestern University undergrad (B.A. 1982).

David L. Heilberg, Attorney at Law / Charlottesville

David L. Heilberg is co-editor of the Virginia CLE® publication Defending Criminal Cases in Virginia and author of Chapter 8 on Eyewitness Identification Procedures. He is in his fifth decade of experience frequently handling bench and jury trials. He received his B.A. from Union College (NY) in 1975 and his J.D. from Washington & Lee University in 1979, where he has taught trial advocacy as adjunct faculty. He started his private law practice in Charlottesville in 1982 after prosecuting in Harrisonburg and Rockingham County for three years. Mr. Heilberg was the 2011 President of the Virginia Association of Criminal Defense Lawyers and regularly represents clients throughout Central Virginia and the Shenandoah Valley. Starting in 2011, Mr. Heilberg has been annually designated as a “Super Lawyer” in Virginia in the field of criminal defense and is AV-rated by Martindale-Hubbell/ and rated 10.0 by AVVO. His practice areas include adult and juvenile (Virginia and federal trials and appeals) criminal, capital murder, driving under the influence, traffic, UVA Title IX proceedings, and plaintiff’s personal injury cases.

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