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Identification Evidence
Published: October 02, 2009

Paper Presented at Federation of Law Societies National Criminal Law Program Victoria, British Columbia July, 2009, SECTION 6.2

Author: Mark J. Sandler

Introduction

It is well recognized that inaccurate eyewitness identification evidence is a systemic cause - perhaps the leading cause - of wrongful convictions. Eyewitnesses frequently "get it wrong." This reflects not only the inherent difficulties in identifying people, particularly strangers, but how easily identifications can be tainted through flawed processes and become the product of suggestibility or contamination.

Even in the absence of investigative misconduct (deliberate or accidental), witnesses' own expectations and desires may motivate them to too readily identify someone as the perpetrator. As Dr. Rod Lindsay, a leading authority on eyewitness testimony has stated, "[t]he combination of witness desire to please police (note the Morin case), expectation that the police have arrested the guilty party, and desire to feel safe or to have the guilty party punished are an ideal combination for priming witnesses to choose someone from a line-up.[1] The reference to the Morin case is to the wrongful conviction of Guy Paul Morin for the murder of his young neighbour in Queensville, Ontario. The public inquiry that followed his exoneration revealed, among other things, that certain Crown witnesses, including forensic experts, aligned themselves psychologically to the police investigators or the prosecution; one civilian witness felt "part of the prosecution team."[2]

Of course, the inherent difficulties in accurately identifying perpetrators, or even the over-readiness to identify someone, need not translate into wrongful convictions. After all, triers of fact can choose to disregard eyewitness testimony. However, the disturbing number of proven instances in which triers of fact have acted upon mistaken identifications may be explained, in part, by the fact that eyewitnesses are, for the most part, honest and well-intentioned. Their credibility (as opposed to theirreliability) is often not in issue. It is more challenging (particularly for jurors) to discard testimony which is credible, although unreliable. As well, this testimony is often delivered with a high level of confidence, including expressions of certainty. Even with cautionary instructions, jurors may not fully appreciate the disconnect between confidence and accuracy. Indeed, studies suggest that jurors place undue reliance on eyewitness identification evidence in comparison to other types of evidence.[3]

It is well arguable that judges, given the notoriety of the frailties of eyewitness testimony in the legal community and education directed to that issue, better appreciate the dangers associated with this evidence than jurors do; hence, the inclination of experienced defence counsel - all other factors being equal - to favour judge alone trials in prosecutions highly dependent upon eyewitness identifications. That being said, eyewitness identification continues to figure prominently in both jury and non-jury criminal cases.

This paper briefly examines several of the legal issues surrounding eyewitness identification evidence. It is beyond the scope of this paper to address other forms of identification evidence although some raise similar issues.

The Need for Special Caution

It is settled law that trial judges must specially caution juries as to the dangers associated with eyewitness identification evidence. Watt's Manual of Criminal Jury Instructions recommends final jury instructions that include:[4]

The case against (NOA)(or, the persons charged) depends entirely, or to a large extent, on eyewitness testimony.

You must be very cautious about relying on eyewitness testimony to find (NOA) (or, anyone) guilty of any criminal offence [or the offence(s)] charged. In the past, there have been miscarriages of justice, persons have been wrongly convicted, because eyewitnesses have made mistakes in identifying the person(s) whom they saw committing a crime.

Eyewitness testimony is an expression by a witness of (his/her)belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses.

When you decide how much or little to believe of or rely upon this evidence, everything that I told you earlier about assessing evidence applies to eyewitnesses. In addition, you should keep in mind several factors that relate specifically to the eyewitness(es) and (his/her/their)identification of(NOA)(or, the persons charged) as the person(s) who committed the offence(s) charged.

The model instruction then recommends that the judge address at least three categories of evidence: the circumstances in which the witness made his/her observations; the description(s) given by the witness after he/she made the observations; and the circumstances of the witness's identification of the accused as the person whom he/she saw. For each category, the judge is to outline the kinds of questions that the jurors should consider, and review the relevant evidence pertaining to that category. For example, in relation to the circumstances in which the witness made his/her observations, the model instructions include:

The circumstances in which the witness made his/her observations

  • Did the witness know the person before s/he saw him/her at the time?
  • Had the witness seen the person on a prior occasion?
  • Howlong did the witness watch the person s/he says is the accused?
  • How good or bad was the visibility?
  • Was there anything that prevented or hindered a clear view?
  • How far apart were the witness and the person whom s/he saw?
  • How good was the lighting?
  • Did anything distract the witness' attention at the time s/he made the observations?

(Review relevant evidence about circumstances.)

The kinds of questions will, of course, vary depending on the individual case.

The model instructions do explain in general terms why the special caution is needed, reinforced by recognition of the role that mistaken identifications have played in past miscarriages of justice. Despite that commendable language, scientists working in this area question the efficacy of jury instructions generally in preventing jurors from unduly relying on eyewitness testimony. This point is revisited below.

The reasons of trial judges, sitting without a jury, should similarly articulate the need for special caution in approaching this testimony. Failure to do so may result in appellate reversal.

Where the witness has expressed certainty about the identification made, the jury should, in most cases, also be instructed about the dubious relationship between the certainty of a witness's eyewitness identification and its accuracy.[5] Again, trial judges sitting without a jury should instruct themselves in similar terms.[6]

It is generally inadequate for jury instructions to simply recite a "boilerplate" caution surrounding eyewitness identification evidence without focusing on its "weaknesses" or the specific features of the evidence that invite concern or scrutiny. As stated by the Ontario Court of Appeal in R. v. Baltovich, "the need for a direction warning the jury of any specific weaknesses [in the identification evidence] has long been recognized."[7] Similarly, a self-caution as to the inherent dangers of eyewitness identification may not immunize a trial judge's reasons from appellate reversal if unaccompanied by some articulation of the specific features of the case that invite concern and how they are resolved.

Circumstances that Invite Caution or Scrutiny

Features of the evidence that invite concern or scrutiny may arise in a variety of ways. The witness may have made his/her observations under circumstances that make any subsequent identification less reliable. On the other hand, the external conditions under which the observations were made might have been ideal, but the witness suffers from his/her own deficiencies which undermine his/her ability to observe, accurately recall or communicate what was seen. Equally important, subsequent flawed identification processes, suggestibility or contamination may seriously, if not fatally, undermine the reliability of any identification that has been made.

Here is a non-exhaustive list of features of evidence drawn from the jurisprudence that might figure prominently in questioning the accuracy of eyewitness identification:

  • Brevity of observation.
  • Lighting or environmental conditions when observations are made.
  • Distance between the witness and the perpetrator.
  • The fact that the perpetrator and/or the witness were moving during the observation period.
  • The length of time between observation and the subsequent identification or description of the events by the witness.
  • The perpetrator was a stranger.
  • The lack of significance of the events to the witness when observed.
  • The witness's shock or distress or impairment due to alcohol or drugs.
  • The witness's vantage point (eg obstructed or side profile).
  • The witness's poor eyesight.
  • The witness's focus (eg. on a gun rather than the perpetrator's face).
  • The lack of distinctive features of the perpetrator or his/her clothing.
  • Inability in the earliest description of the perpetrator to recall any detail or truly distinguishing features.
  • A description of the perpetrator contains features not shared by the accused.
  • A description of the perpetrator does not contain prominent features of the accused that would be expected to be seen.
  • Significant changes in the descriptions of the perpetrator or "improvements" in descriptions through time.
  • An earlier identification of someone else as the perpetrator.
  • Information communicated to the witness prior to a line-up[8] that creates the expectation that the perpetrator is known to the police and is in the line-up (or the existence of that expectation despite what was or was not communicated).
  • Information communicated to the witness prior to a line-up that promotes the importance of making a positive identification.
  • Involvement of the investigating officer or others in a way that consciously or subconsciously singles out the suspect.
  • The witness's motivation to make a positive identification:(eg. removing a criminal from the streets, desire to please the investigators).
  • Poor identification processes: show-ups, or a simultaneous display of multiple photographs, rather than a sequential photographic display.
  • Photographs that highlight the suspect or predispose the witness to select him or her.
  • Expressed limitations or qualifications upon the identification ("I'm not positive or sure").
  • Contamination as between eyewitnesses or conversely, significant discrepancies as between eyewitness's descriptions.
  • Witnesses observing the suspect's image in media accounts, at the police station or otherwise before a line-up.
  • Reinforcement or affirmation (deliberate or subconscious) of the witness's selection of the suspect once made, as affecting the witness's subsequent confidence or certainty in the identification.
  • Disagreement or disappointment with the witness's selection of someone other than the suspect, as affecting a subsequent identification.
  • A validly conducted identification that follows an earlier tainted or flawed identification process.[9]
  • Reliance on an in-dock identification.[10]

All of the above potentially undermine accurate identifications. This proposition is largely, if not entirely, uncontroversial. The challenge is to recognize the existence of these circumstances and determine how they affect the overall assessment of the identification that has taken place. To take an obvious example,no one reasonably disputes that the reliability of an identification is adversely affected by telling a witness in advance that the perpetrator is definitely present in the line-up. Jurors must be alerted to the existence and significance of that problem. Judges sitting without a jury must address this weakness. Indeed, such evidence may contribute to an appellate court's determination that a conviction based on such a flawed identification is unreasonable and unsupported by the evidence.

The more interesting issue arises where controversy may exist as to whether certain identification processes make an identification less reliable or as to whether the particular type of identification (for example the cross-racial identification) is inherently less reliable. This invites consideration of how, if at all, the trier of fact is to resolve that issue: through judicial notice, reliance on literature or expert testimony.

Admissibility of Expert Testimony

In R. v. McIntosh[11] the Ontario Court of Appeal considered whether the trial judge erred in refusing to admit defence evidence from a psychologist on the frailties of eyewitness identification. The witness would have commented on the factors present during the crime, a robbery, that would impair the ability of witnesses to make an accurate identification; the problem of cross-racial identification; the quality of memory recall for perceived events over different time spans; the influence of "post event information" on memory; the validity of the photographic lineup and misconceptions of jurors respecting them; the difficulties with an "in dock" identification and the police procedures relating to the identification of the two accused.

Finlayson J.A., speaking for the Court, noted the Crown's "passivity" at trial and on appeal with respect to this type of evidence. He found this posture unsurprising given the Crown's reliance on the "soft sciences" in other cases. Given the limited argument before the Court, he was not prepared to determine whether this type of evidence was ever admissible. However, he forcefully questioned the judiciary's over eagerness to abdicate fact finding responsibilities to purported experts in behavioural sciences and assume that a particular witness possesses special knowledge and experience going beyond that of the trier of fact.

Having noted the Supreme Court of Canada's criteria for the admission of expert evidence in criminal cases enunciated in R. v. Mohan[12] (relevance, necessity in assisting the trier of fact, the absence of an exclusionary rule, and a properly qualified expert), he expressed serious reservations as to whether the psychology of witness testimony is an appropriate area for opinion evidence at all or, put another way, is even a recognized branch of psychology. Even if it is, opinion evidence describing the problems in identification is not, in his view, directed to matters that are outside the normal experience of the trier of fact. The problems in cross-racial identification reflected by the psychologist's research support the public perception and therefore are not beyond the jurors' own experience.

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