Toronto Criminal Lawyers - Toronto Criminal Defence Law Firm - Cooper & Sandler LLP

Identification Evidence
Published: October 02, 2009

Finlayson J.A. favoured the use of jury instructions to convey the frailties of eyewitness evidence rather than expert testimony, stating:[13]

This is not to say that a reminder as to cross-racial identification is not appropriate in a case where it is an issue. However, the argument that impresses me is that such a reminder from the trial judge is more than adequate, especially when it is incorporated into the well established warnings in the standard jury charge on the frailties of identification evidence. Writings, such as those of Dr. Yarmey, are helpful in stimulating an ongoing evaluation of the problem of witness identification, but they should be used to update the judge's charge, not instruct the jury. I think that there is a very real danger that such evidence would "distort the fact-finding process." 

More than that I am concerned that much of what Dr. Yarmey and those who support him are saying is that our jury system is not adequate to the task of determining the guilt of an accused person beyond a reasonable doubt where identification evidence is pivotal to the case for the Crown. Much of Dr. Yarmey's evidence might well give us pause to consider whether our present jury instruction is adequate to the task, but to admit such evidence in the particular case may foster apprehension in the timorous juror and give him or her an excuse for not discharging that juror's duty to the community that he or she has sworn to serve. 

An additional problem is that this evidence introduces yet another potentially contentious issue into the trial. If the defence is entitled to call this opinion evidence, the Crown is entitled to rebut it. This means that the jury has to be instructed as how conflicts in the opinions of experts are to be resolved, and when resolved, as to the limited use of the evidence. The jury must also be told that to the extent that the opinion evidence contradicts anything said by the trial judge in his or her charge, the jury must reject the evidence and accept what is said by the judge. Would it not be simpler to have the trial judge give the instruction in the first place?

He ultimately concluded that the concerns expressed by the proffered witness turned out to have limited application to the case itself, and that the trial judge’s jury instructions properly placed any frailties of the evidence in the context of the case as a whole.

McIntosh has been cited by various Canadian courts in support of the proposition that this kind of evidence ought not to be received. The contention that the evidence is unnecessary (as it is within the common experience of triers of fact) figures prominently in these decisions.[14]

The recent role that science (such as hair microscopy and forensic pathology) has played in wrongful convictions does invite a close scrutiny of expert admissibility, and the too ready acceptance that expert opinions are well grounded in validated science. The not-so-subtle subtext of McIntosh is that the prior introduction of junk science, such as child abuse accommodation syndrome, has made the Court particularly wary about expert evidence in the “soft sciences.” As well, there is something appealing about reducing the length and complexity of trials by allowing judges to instruct jurors or themselves, without the introduction of competing or complex scientific testimony, on the matters that should concern them. 

However, as noted by Justice Casey Hill[15], this approach has its own difficulties:

The courts here and in the United States continue to resist opening up the eyewitness identification subject to a contest of expert witnesses. At the same time, the courts, as reflected in cases like McIntosh, Smith and Cromedy, attribute to juror common sense and common knowledge an understanding of aspects of eyewitness identification. This approach, superficially attractive, is not without problems:

(1) if expert evidence respecting eyewitness identification issues i.e. cross-racial effects, frailties of simultaneous photo line-ups undertaken without blind administration protocol, the weak link between witness confidence and identification accuracy, etc. is unnecessary as the subject matter is so notorious as to not require expert evidence why are we taking such pains to remind or instruct jurors about matters they presumptively know?

(2) the behavioural science community would disagree that ordinary people do know the ins and outs of eyewitness identification issues – the experts believe they would be delivering a counter-intuitive message to triers of fact and thereby correcting their misperceptions 

(3)  how does a trial judge, in updating her/his jury charge or bench book material, unaided by the calling of expert evidence before the trier(s) of fact, engage in extra-record reading relating to eyewitness identification issues? Receive expert evidence on the correct jury charge or legal self-direction? Invite such evidence or the filing of relevant behavioural science articles?

These issues stand to be clarified as the courts struggle with the boundaries of judicial notice and the admissibility of expert evidence respecting eyewitness identification processes. 

The problems identified by Justice Hill are highlighted by Finlayson J.A’s use of “cross-racial identification” as the kind of frailty best dealt with through jury instruction.

There is a substantial body of jurisprudence, drawing upon behavioural science studies, that supports the proposition that cross-racial identifications are particularly difficult, and may easily produce unreliable results. But studies have also questioned whether this phenomenon applies to all cross-racial identifications. Are some groups better than others in bridging the “racial divide” in identifications? Are difficulties in cross-racial identifications connected with the limited contact that members of one race may have with another? If so, is a caution still appropriate where the witness has extensive contact with members of the accused’s race?

It is questionable whether a trial judge can resolve these issues in a scientifically supportable way based on a review of literature, rather than through expert testimony. How is the trial judge to resolve the conflicting scientific literature? Moreover, if the literature and behavioural scientists differ on these issues, can it truly be said that the truths surrounding cross-racial identifications are within the common knowledge of judges or juries or the subject of judicial notice? Finlayson J.A. commented that addressing the frailties of cross-racial identifications in jury instructions avoids the spectre of competing experts or having to instruct the jury to resolve any conflict between the testimony and the jury instructions in favour of the latter. But doesn’t the fact that properly qualified experts may disagree with each other and with the jury instructions put in question the foundation for the jury instruction in the first place?

An accused may see little harm, in this particular example, if trial judges instruct a jury that cross-racial identifications may be particularly unreliable, assuming that it is the Crown that relies upon that identification to support its case. At worst, the caution may be over-inclusive and not applicable to this particular identification. But even assuming that a cautionary jury instruction on the frailties of cross-racial identification is appropriate, does it sufficiently bring home these frailties to the jury?

The latter is a real concern for several reasons. If, as reflected earlier in this paper, jurors do place undue reliance on identification evidence as compared to other types of evidence, their willingness to do so may be highly resistant even to cautionary instructions. Second, it is one thing for a trial judge to explain, in a general way, the recognized frailty of cross-racial identification. It is quite another thing for a properly qualified expert to both explain, illustrate and perhaps even demonstrate what the problem is, based on scientific research that meets Mohan/Daubert[16] reliability standards. The jury instruction may be accurate; but hardly compelling or persuasive. In any event, the assumption that frailties in eyewitness identification are well within the common knowledge or experience of triers of fact is highly questionable. Not only do studies suggest the contrary, but certain well supported conclusions about eyewitness identifications (such as the desirability for sequential rather than simultaneous photographic displays) are counter-intuitive. Others (such as the dangers of post-line-up reinforcement or affirmation) may accord with common sense, but only when fully explained. And even if these conclusions generally accord with common sense, the science may be needed to articulate the depth of the problem.

It is also interesting that McIntosh effectively lumps this area of behavioural science into the other “soft sciences” that are viewed with such skepticism by the Court. Again, recognizing the commendable movement to view more critically the introduction of expert testimony, it is well arguable that in this area, there now exists a body of peer reviewed research, recognized in the relevant scientific field, that permits objective, quantifiable testing and validation. Simply put, this is an area that arguably can survive a challenge based upon the Mohan/Daubert criteria, particularly when the thrust of the proffered opinion is unlikely to confirm the accuracy of an identification (a determination which is the trier’s responsibility), but simply articulate its limitations.

State (Tennessee) v. Copelan[17] is a 2007 decision in which the Supreme Court of Tennessee reversed a trial court’s decision (and overruled previous jurisprudence) to exclude expert testimony on eyewitness identification. The Court recognized advances in this field, citing Boston College Law Professor Mark S. Brodin, a self-described skeptic on the topic of behavioural science evidence. Brodin made the following observations:[18]

Ironically, the form of social science evidence which is most solidly based in “hard” empirical science has met with the most resistance in the courts. Expert testimony concerning the limitations and weaknesses of eyewitness identification is firmly rooted in experimental foundation, derived from decades of psychological research on human perception and memory as well as an impressive peer review literature.

The Court was persuaded by the educational training of the experts and the empirical science employed to the point that it was prepared to depart from the previous exclusionary rule. It noted that many scholarly articles detail the extensive research in this area. DNA exonerations have also validated this research. The Court addressed the “necessity” argument in this way:[19]

Courts traditionally tended to exclude scientific evidence from expert witnesses in these disciplines, primarily on the basis that the testimony addressed matters within the common understanding of jurors, was confusing, or that it invaded the province of the jury to make credibility determinations. However, with the increased awareness of the role that mistaken identification…play[s] in convicting the innocent, a new trend is developing regarding the admissibility of expert testimony.

The Court then cited scientifically tested studies, subject to peer review, that have identified legitimate concerns that jurors are insensitive to many factors that influence eyewitness memory and give disproportionate weight to the confidence of the witness. They overestimate the reliability of cross-racial identification. The Court concluded that “the research also indicates that neither cross-examination nor jury instructions on the issue are sufficient to educate the jury on the problems with eyewitness identification.[20]”

The proffered witness in this case would have explained that there is little or no relationship between certainty and accuracy; described how extraneous factors can affect memory accuracy; expressed particular concern about the cross-racial identification generally and in this case; and indicated how subsequent events (such as the officers’ comment after the identification that the person identified was the primary suspect, and the witness’s later observation of the defendant in the newspaper linking him to the crime) may have reinforced the correctness of the witness’s otherwise questionable identification. In the Court’s view, this evidence was admissible:[21]

In our view, Dr. Brigham’s testimony satisfies the requirements of the McDaniel test in that it is reliable and would have been of substantial assistance to the jury. The proffered testimony was based upon solid empirical data gathered in a scientific setting. The information was subjected to a thorough peer review process. His opinions were formulated from extensive research and would have given the jury a valuable context within which to assess the eyewitness identification. Moreover, the trial judge, who saw and heard the witnesses firsthand, expressed a desire to allow the testimony as particularly helpful under the circumstances of this case.

Despite the strong language in McIntosh, the Ontario Court of Appeal did acknowledge that, given the position of the parties, it was not deciding whether expert testimony on eyewitness identification is ever admissible. If the science supports the proposition that many of the frailties respecting eyewitness identification are not within the common experience of triers of fact, there may be a basis for revisiting the Canadian trend to exclude this kind of expert evidence. Interestingly, Oliphant A.C.J.Q.B. in R. v. Sheppard, supra, in excluding expert testimony on eyewitness identification, left open the possibility that it could be admitted in jury trials. Based in part on the vast array of educational programs available to judges, as well as appellate guidance provided to trial judges in this area, the proffered expert, while properly qualified as such, did not provide him with information that was outside either his experience or knowledge as a trial judge.

Assuming that expert testimony in this area continues to be excluded, counsel and trial judges should hearken back to the less often cited comment of Finlayson J.A. that “[m]uch of Dr. Yarmey's evidence might well give us pause to consider whether our present jury instruction is adequate to the task.” For the reasons earlier given, it may well be inadequate (and indeed unconvincing) to advise jurors, for example, that there is no correlation between confidence and reliability or as to the dangers of post-line-up reinforcement or affirmation, even if coupled with a general caution on the dangers of eyewitness testimony, unless the trial judge also conveys the depth of the problem. I suggest that this can only truly be done, and jury instructions can only serve as a true proxy for expert testimony, if some detail is provided of what the scientific studies show. The dangers associated with this type of evidence may require no less.

[1] R.C.L Lindsay,“Eyewitness Evidence” in Forensic Evidence inCanada,2^nded. by Chayko G.M. and Gulliver E.D. (Toronto: Canada Law Book, 1999) at 205.
[2] Ontario<, The Commission on Proceedings Involving Guy Paul Morin: Report(Toronto: Ontario Ministry of the Attorney General, 1998) (Commissioner Fred Kaufman).
[3] R. v. Miaponoose(1996), 110 C.C.C. (3d) 445 at 450-451 (Ont.C.A.);R. v. A.(F.)(2004), 183 C.C.C. (3d) 518 at para. 39 (Ont.C.A.);R. v.Goran, [2008] O.J. No. 1069 (C.A.) at para. 19 [Goran].
[4] David Watt,Watt’s Manual of Criminal Jury Instructions(Toronto: Thomson Canada Limited, 2002) at 221-222.
[5] Goran, supranote 3 at para. 26;R. v. Knox(2006), 209 C.C.C. (3d) 76 at paras. 51 and 55 (Ont.C.A.);R. v. Richards(2004), 70 O.R. (3d) 737 at para. 33 (C.A.)[Richards].
[6] Ducharme J. inR.v. Powell[2007] O.J. No. 4196 at para. 10 (Sup.Ct.)[Powell] makesthe important related point that demeanour should play virtually no role in assessing the reliability of an identification.
[7] R. v. Baltovich(2004), 191 C.C.C. (3d) 289at para.79(Ont. C.A.);R.v. Turnbull, [1976] 3 All E.R. 549 at 552 (C.A.);R. v. Canning(1986), 27 C.C.C. (3d) 479 at 479-480 (S.C.C.);R. v. Brand(1995), 98 C.C.C. (3d) 477 at 479 (Ont.C.A.);R. v. Fengstad(1994), 27 C.R. (4^th) 383 at 396-397 (B.C.C.A.);R. v. Proulx(1992), 76 C.C.C. (3d) 316 at 350 (Que.C.A.);R. v. Richards, supranote 5at para. 28;R. v. Brown(2007), 216 C.C.C. (3d) 299 at paras. 17-19 (Ont.C.A.).
[8] For convenience, the term “line-up” is used here to include not only the live assembly of individuals, including a suspect, but photographic displays.
[9] R. v. Spatola, [1970] 4 C.C.C. 241 at 250-251 (Ont.C.A.);R. v. Whittle, [1984] A.J. No. 563 at para. 15 (Alta.C.A.);Goran, supranote 3 at para. 31.
[10] A helpful summary of the leading authorities on the unreliability of the dock identification is contained inPowell, supranote 6 at paras. 13-14
[11] R. v. McIntosh(1997), 117 C.C.C. (3d) 385 (Ont.C.A.)[McIntosh].
[12] R. v. Mohan,[1994] 2 S.C.R. 9.
[13] McIntosh, supranote 11 at paras. 22-24.
[14] R. v. Woodward,[2009] M.J. No. 132 (C.A.);R. v. Sheppard, [2002] M.J. No. 135 (Q.B.)[Sheppard];R. v. Myrie, [2003] O.J. No. 1030 (Sup.Ct.).
[15] Casey Hill, “Eyewitness Identification Evidence: Emerging Issues”Alan D. Gold Collection of Criminal Law Articles(December 2004) ADGN/RP-196 at paras. 25-26 [QL].
[16] Daubert v. Merrell Dow Pharmaceuticals, Inc.113 S.Ct 2786 (1993). InDaubert, the Court departed from the previous test for threshold reliability that had rested on whether the expert evidence was generally accepted in the relevant scientific community. Instead, the Court considered a number of factors, including whether the theory or technique had been tested and found subject to falsification; whether it had been subject to peer review and publication; its known or potential error rate; and (as one factor only) its general acceptance.
[17] State (Tennessee) v. Copeland, 226 S.W. 3d 287(Tenn.2007) [Copeland].
[18] M.S. Brodin,“Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic” (2005)73 U.Cin.L.Rev. 8678 at 889-90.
[19] Copeland,supranote 17at299
[20] Copeland, supranote 17at300
[21] Ibid.302;