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In Charles Dickens' "A Tale of Two Cities" Book 2 Chapter 3 'A Disappointment', a man is on trial. He has been identified by an eyewitness who testifies under oath that he saw the defendant commit the crime and identifies the defendant in court by sight. The defense lawyer produces another man in court that looks almost exactly like the defendant, which undercuts the eyewitness' testimony. The defendant is acquitted.

In a modern court, if the defendant has been identified by a photo or in-person lineup or other such method, could informing the prosecution of the defense's intent to produce a person who looks exactly (enough) like the defendant, and doing so per proper procedure in court, defend successfully against the identification evidence? What if the identification has been made by watching video, such as a security camera or bystander phone recording?

(My question does not include the surprise production of the lookalike. I have read that surprise production of evidence, at least in USA courts, is not allowed, and that evidence has to be given to the other side beforehand. So standing up a lookalike unexpectedly in the courtroom would probably not be allowed.

This question Can a lawyer subject the court to a (temporary) ruse for a legitimate purpose? is similar but deals with faking out the court by sitting the lookalike as the defendant until the identification testimony is completed, then revealing the lookalike status by surprise.)

No jurisdiction restrictions: I'd be curious about any system of law's view, though I am most familiar with USA court systems.

Triplefault
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2 Answers2

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Whether there is a reasonable doubt about identity will depend on the totality of the evidence, not a single look-alike

The starting point is that all relevant evidence is admissible, including evidence that calls into question the accuracy of an eye-witness identification.

Whether a jury is convinced beyond a reasonable doubt that the accused was the perpetrator depends on the totality of the evidence going to the issue. There will often be other evidence connecting the accused to the crime. And there may be evidence distancing the look-alike from the crime.

In some cases, the look-alike will be sufficient to inject a reasonable doubt for a particular jury member. In other cases, it will not. It will depend on the totality of the evidence.

I also have doubts about the manner in which the look-alike evidence could get before the court, but I have skipped past that, since you're just asking about what its effect would be.

phoog
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Jen
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I found the following anecdote, which is contained in Ferdinand von Schirach's book "Verbrechen", which has a note stating that the stories are incredible but true. Von Schirach used to work as a lawyer defending a variety of clients and wrote several justice-themed books. I do not have a case number or similar. Undoubtedly, the names and some details have been changed.

A defendant, "A", was indicted for robbing a pawn shop. He was identified by the owner, who had been held at gunpoint, and an elderly witness picked "A" from a shaky lineup. His brother "B" implicated at the trial another brother of them, "C", by stating that he had handed him money that matched the robbed amount and by giving an alibi to "A". "C" and "A" look very much alike.

Because the pawn shop owner as an injured party was entitled to be present at the entire trial (this is called "Nebenklage", a particularity of German criminal court proceedings), he heard the statements by "B", took them at face value, and was bamboozled into identifying "C" on a photograph of "A", "B", "C", and their other brothers as the perpetrator. However, "B" had "accidently" wrongly stated which person on the photograph was "C", leading to more confusion and doubt regarding the crucial witness. In the end, the public defender of "A" was able to raise enough doubt and got his client acquitted.

"B" was well aware that "C" had a very good alibi, because "C" had been out of the country at the time of the crime, as he could prove using the stamps on his passport. "B" was investigated for the crime of making false statements to the court, but ultimately never faced charges: he had come off as a bumbling simpleton and there was not enough evidence. During this investigation, von Schirach was his lawyer.

TAR86
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