Charged with a Crime Based On Inaccurate Witness Identification?: What Your Attorney Must Do To Protect Your Rights


In America, it is estimated that there are thousands of innocent people serving lenghty sentences in prisons based on mistaken witness identification.  With recent improvements in science and DNA evidence used by law enforcement, over the past 10-15 years, hundreds of people have had their wrongful convictions based on mistaken witness identifications overturned due to DNA  and other scientific evidence.

Unfortunately, many of these people who had their sentences overturned had to wait decades before they were ultimately exonerated, and there are still many others petitioning courts and appealing to programs like the Innocence Project to seek an exoneration of their sentences that were based on mistaken eye-witness identification. 

If you are charged and being prosecuted for a crime you did not commit due to a mistaken identification, there are things that you and your attorney can do to make sure you are not convicted of a crime you did not commit in the first place.

As an appellate lawyer, I have received cases where individuals were convicted of crimes as serious as murder based on unreliable eye-witness testimony alone, and the defense attorneys failed to request a simple jury instruction that may have made the difference between a guilty and not guilty verdict. This is where having an experienced and seasoned criminal defense lawyer comes into play, and may protect your freedom.

If you believe you were mistakenly identified as the perpetrator of a crime you did not commit, make sure that your attorney request a “Kloiber Instruction”.  


A Kloiber instruction is a jury instruction that a judge gives to a jury prior to their deliberations that warns them that the accuracy of a witness’ identification testimony must be received with caution because there may be factors present that casts doubt as to the reliability of the witness’s identification testimony. Since the prosecutor is charged with proving its case beyond a reasonable doubt, this jury instruction in itself may cast reasonable doubt as to a Defendant’s guilt where the charges are predicated on shaky eyewitness testimony. Remember, the Commonwealth must not only prove beyond a reasonable doubt that a crime took place, but they also must prove it was the defendant who committed the crime. A Kloiber instruction coupled with skillful advocacy could coalesce and form the basis for a NOT GUILTY VERDICT.

While we see a lot of DNA, finger-print and other scientific evidence being used to convict defendants on TV shows like CSI and Law and Order, in the real world DNA and other scientific evidence is lacking in most cases and ofentimes people are charged and convicted based soley on eye-witness identifications.


  An accused is entitled to a Kloiber instruction if one of the following factors are present: 

  • where an eyewitness did not have a clear opportunity to view an accused (i.e. bad position, view obstructed, poor lighting conditions or other reasons did not have a good opportunity to view a suspect),
  •  the eye witness equivocated on the identification of the defendant (i.e. was not positive as to identity, the witness’ was hedging or gave inconsistent testimony as to identification), or 
  •  the witness had some difficulty making an identification in the past (i.e. witness failed to identify accused from a photo array/lineup or the witness made a prior identification of another person). 

I have seen numerous cases where an eyewitness is unable to identify an accused from a photo array or a line up shortly after observing the crime, but attempt to make an identification of an accused a year later at the trial where he is the only person sitting at the defense table beside a lawyer. 

When such an issue arises, an experienced criminal defense lawyer will request that the court provide the jury with a Kloiber instruction, which will certainly make it difficult for the prosecution to obtain a guilty verdict where they are relying soley on questionable eyewitness testimony to convict.

This instruction should also be requested and given in cases where it was dark outside when the crime occured, the eye-witness seemed uncertain or hesitant when identifying the accused or in situations where the eye-witness previously identified a different person as the person who committed the crime. 

If you or a loved one are charged with a crime and believe you or they were mistkenly identified, it is important that you retain a seasoned criminal defenseattorney to protect your rights and freedom. We offer free consultations, and evening and weekend appointments. Call (717) 737-3300 to schedule your free consultation.