At trial, whether it be bench or jury, is the practice of asking that the record reflect that the Defendant has identified the Defendant used to ensure that the record is clear for appeal, or is it used for some other reason. That is to say, if the request were not made and the Court did not utter "the record will so reflect", that would not necessarily render the State's proof of identity somehow legally insufficient, would it?

Bob, how do you only have 2 postings since 2005? You should visit more. I don't have an answer for your question. It's just the way things are done.

Because I have no way of knowing when I look at the record that the defendant is really the dude wearing the Member's Only jacket and the skinny tie and not an extra in Secret of My Success or the lead singer for Starship. When you say let the record reflect, you are in effect saying that the defendant is that guy.

P.S.-And does that mullet belong to the defendant or Geddy Lee?

[This message was edited by David Newell on 08-28-08 at .]

It's really just a best practice issue. On appeal, all you have is that cold record. There's no way of knowing that the person the witness pointed to or "that guy in the white shirt and blue tie" was the defendant, the defense attorney, or a random guy in the gallery. Now, you can certainly infer that it was the defendant, or the defense attorney would've jumped up screaming, but if you want to make it impossible for the defendant to come back later saying the witnesses identified someone else, put it explicitly in the record.

There's a case out there where apparently the witness got a little confused and identified the prosecutor instead of the defendant.

If you really need a case, Williams v. State, 196 S.W.3d 365 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd.) held identification of the defendant was sufficient based upon the victim's description of the defendant's clothing even though the prosecutor forgot to say the magic words. So failing to do that doesn't necessarily make the identification insufficient, but it's such an easy way to foreclose an issue on appeal.

I had one I tried earlier this year where the witness identified one of the 3 defense attorneys as the defendant. Here's how it goes: He points. I ask him to identify some article of clothing the person is wearing. He says the one with the red tie. All 3 defense attorneys are wearing red ties. Defendant's tie is blue.

Thank God for video, which bailed us out.

I have finally figured out why one would hire extra attorneys.

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I have finally figured out why one would hire extra attorneys.

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Aren't they fungible?

On a slightly different note, I've never understood why the judge would want to offer an opinion on whether the witness was pointing at the defendant. Wouldn't be just as easy for the advocate to say something like: "And for purposes of the record, I'll just state that the witness has pointed at the defendant"?

I've heard of cagey judges that hedged on things like that: The record will reflect that the witness has pointed at the person seated in the middle seat of the defense table.

From a practical standpoint, if you don't object to a "let the record reflect that" statement, an appellate court will take it as true.

Hey, I remember reading that in an article somewhere.

I knew it sounded smart, so it couldn't have originated with me.

[This message was edited by JohnR on 08-28-08 at .]

How about handing the witness a digital camera and asking the witness to get up and go take a picture of the defendant? Then, print and mark that picture as an exhibit, offering it into evidence to prove the witness identified the defendant. That ought to irritate the defendant and his lawyer.

Heh heh heh. I like that one.

The judge in the first felony court I worked in did not like the "let the record reflect" method. So we were trained to have the witness point out the defendant and describe his/her clothing, etc., and then we would ask the following question while pointing at the defendant: "I am now pointing at the defendant in the cause before this court, is this the person you just identified (or know as ______)?"

It's not as dramatic as JB's suggestion, but a little more so than asking the judge to have the record reflect . . .

The first judge I tried felonies in front of said that he couldn't confirm that the record reflects that the witness has id'ed the defendant because it was an improper comment on the evidence. I just started saying, "Let the record reflect . . ." and the judge made no comment at all. All other judges I've tried cases to are comfortable orally confirming the id on the record. So I guess its just a matter of how things are done wherever you try cases.

And, as proof that it is possible to win on appeal without ever having a witness identify the person seated in the courtroom. Cason, 2006 Tex.App. LEXIS 3010.

Put a big exhibit sticker on the defendant's forehead and offer him into evidence.

Yeah when the defense attorney asked for an instructed verdict based on no witness pointing at the defendant and saying "HIM!!!" I have to admit, Chris Fostel (my trial partner) and I both held our breath.

Three witnesses had testified that they had known the defendant since "they was kids", but we never actually had the moment where the witness stands and points at the defendant. There was clear evidence far beyond what the appellate court says in their unpublished opinion but Id' much rather have avoided that one moment. I'm sure it took a year or two off my life.

There used to be a judge in Midland who would just give you a goofy look when you made the "May the record reflect..." statement, so we went to "The record should reflect...". There is case law out there saying that unchallenged statements of counsel like this may be taken as true by appellate courts.