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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.

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  • A propos "watching a video", are you asking if a random person can be called as an expert witness to identify a criminal perpetrator in a phone video? A line would be drawn between "I was there and saw the act" vs. "The guy in that film looks like the defendant". The "watching a video" add-on confuses the matter,
    – user6726
    Jan 21 at 23:48
  • @user6726 I don't know the full mechanics of using video in court, but I have read that video does get used, and if this other guy looks exactly like the defendant, then one may have a harder time saying that's the defendant in the video. Jan 21 at 23:54
  • There was a case in the USA where a young lady was convicted of theft and fighting the security guards, lucky for her the case with her photo was published in a newspaper, and the real culprit came forward because she didn’t want an innocent person to go to jail. Their photos were identical.
    – gnasher729
    Jan 22 at 12:22
  • If the lookalike has an alibi, that's likely to make them unpersuasive as a defense.
    – Barmar
    Jan 22 at 17:08

2 Answers 2

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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.

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    I think this answer is correct, but sort of buries the lede. The bottom line is that producing the lookalike is not "sufficient" in the the formal-logic sense, but that a jury may or may not be convinced by it.
    – bdb484
    Jan 22 at 3:09
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    Regarding your last paragraph, I can indeed going to be a fun discussion between the defense attorney and the lookalike. "Hi. We would like you to appear in court and convince everyone that a possibility exists that you might be the perpetrator."
    – Stef
    Jan 22 at 12:36
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    In particular, if the lookalike could not have been at the place where the crime occurred, it seems very unlikely to refute it. And if the lookalike doesn't have motive, it won't be very persuasive.
    – Barmar
    Jan 22 at 17:12
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    There’s a claim that among one million people on average, there is one who looks exactly like you. So how far did you search for the lookalike? Is there any reason to believe they had committed the crime?
    – gnasher729
    Jan 23 at 10:11
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    There was a case where one person committed a crime and his other two identical triplets showed up at the courthouse. The problem was they all had motive but you can't claim beyond reasonable doubt on all three of them, so it was reasonably safe.
    – Joshua
    Jan 24 at 3:42
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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.

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    I'm unsure if the goal of this anecdote was to create confusion for the reader as well, but if so, it has succeeded. I would recommend trying to clarify everyone's relationship a bit more clearly. Jan 22 at 22:12

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