Identification of the Accused Must Be Confirmed at the Oral Trial

Identifying with certainty the person who committed an offence is one of the most delicate problems in criminal proceedings. In assault cases and other offences committed in the presence of the victim or of witnesses, the perpetrator's identity often rests on what those people saw and on how they later convey it to the proceedings. The Spanish Supreme Court, in its judgment of 6 May 2026 (appeal 7402/2023), recalls an essential rule: the decisive evidence for identifying the perpetrator is the witness's statement at the oral trial, subject to adversarial testing, not the identification procedure carried out during the investigation by itself. As an informative commentary — and not as advice on a specific case — we review what this doctrine means and why it matters for the defence.

How the perpetrator of an offence is identified

Identifying the person responsible for an offence is not a single act but the result of several elements that accumulate throughout the proceedings. The initial description given by the victim or witnesses — physical features, clothing, the circumstances of the encounter — the data obtained in the investigation and, where doubts persist, the identification procedure, all help to direct the case against a particular person.

Yet steering the investigation towards a suspect is one thing, and having the evidence that allows a conviction is quite another. Criminal procedure draws a clear line between investigative acts, proper to the investigation phase, and evidence, which is produced at the oral trial and is, as a rule, the only thing that can ground the judgment. The judgment under review sits precisely on that boundary: when an identification ceases to be a mere investigative datum and becomes incriminating evidence.

What an identification line-up during the investigation is

The identification line-up is a procedural step carried out in the investigation phase where there is doubt about the perpetrator's identity. Its mechanics are well known: the witness or victim observes several persons of similar appearance and characteristics, among whom the suspect is placed, and states whether they recognise any of them as responsible for the act. The presence of similar persons serves a safeguarding purpose: to prevent the identification from being reduced to pointing out the only person who matches the description.

This step performs a preparatory function. It serves to specify against whom the proceedings are directed and to organise the investigation, but it is not designed to replace the statement that the witness will later give at the trial. It is, in short, an investigative act: it provides a basis for moving forward, not a definitive pronouncement on authorship. Understanding this nature is key to placing its value correctly within the case as a whole.

Why the line-up is not enough by itself

The core of the doctrine recalled by the Supreme Court in its judgment of 6 May 2026 (appeal 7402/2023) is that the identification line-up carried out during the investigation does not, by itself, suffice to displace the presumption of innocence. The reason is substantive and goes to the very model of criminal adjudication.

The investigation unfolds without the immediacy of the court that will later decide and, above all, without the full adversarial testing that characterises the oral trial. At trial, the defence can question the witness, probe the conditions in which the initial observation took place, the firmness of the recollection and the circumstances of the identification. An identification that has not passed through that sieve remains an element of the investigation, valuable for directing the case but insufficient in itself to sustain a conviction.

Hence a warning worth retaining: to rest a conviction solely on an investigation line-up that is not later confirmed at trial is to build it on a footing that the presumption of innocence does not tolerate. A conviction requires incriminating evidence produced at trial, not the mere reproduction of what was done in the prior phase.

Why the identification must be confirmed at the oral trial

If the line-up is not enough by itself, what gives the identification the value of incriminating evidence is its confirmation at the oral trial. The decisive identification is the witness's statement at trial, in which they identify the accused or confirm the identification made during the investigation, while being subject to questioning by the parties. It is then that the identification is incorporated, with full guarantees, into the body of evidence that the court may assess.

What is essential, the Supreme Court stresses, is that every identification can be challenged at trial with adversarial debate. This is not a formality: that debate allows the court to appraise directly the witness's certainty, to contrast their account with the rest of the evidence, and the defence to question the conditions of the identification. The identification thereby gains reliability because it is formed or confirmed before the court that will decide, rather than simply imported from the investigation phase.

This requirement shapes, in practical terms, the activity of the prosecution and of the defence. For the identification to have the force to convict, the witness must appear and give evidence at trial; correlatively, the defence has at that moment the natural opportunity to test the soundness of the identification, exposing hesitations, contradictions or influences that diminish its value.

Key points for the defence and for assessing the evidence

The doctrine recalled by the judgment of 6 May 2026 offers several reading keys. The first is that one must distinguish rigorously between the investigative act and the evidence: the investigation line-up is a legitimate and useful tool, but its evidential value depends on what happens afterwards at trial.

The second is that the adversarial debate at trial is the true quality filter of the identification. Examining how the initial description was made, the visibility conditions, the time elapsed or the influence of intervening information forms part of the critical analysis that the oral trial makes possible and that no prior step can replace.

The third is of a general order: the presumption of innocence operates as a limit against convictions based on an untested identification. Recalling that the decisive evidence is that of the trial, and not the isolated step of the investigation, helps to weigh the real significance of each identification with prudence. As an informative commentary, this note does not replace the individual study of each matter, but it does illustrate a rule that the Supreme Court firmly maintains on the identification of the accused.