Eyewitness Identification

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General Principles

Recognized Unreliability

Courts are very cautious and "weary" of eyewitness identification evidence as it is considered "inherently" and "notoriously" unreliable. The trier of fact must take the failties into consideration when looking at whether the accused was known to the witness, the circumstances of the identification, and the level of detail of the identification.
Gough, supra, at to 37 paras to 37http://canlii.ca/t/fwdpz ("The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful… As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance. ") </ref>

Honest but Mistaken ID

It is essential that courts recognize the risk of honest but mistaken beliefs of an eyewitness. It is “well-established” that the frailties of eyewitness identification has “lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused” Even honest and convincing witnesses may misidentify individuals. A viewing of only a single image can have the effect of stamping the face of the accused on the memory of the true perpetrator. It is highly suggestable and contaminates identification.

Consequently, identification evidence is treated differently than other evidence. Special care and caution should be taken.

Special Caution Required

Judges are required to given special cautions when considering identification evidence. This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.

There is a particular need for caution in cases "that involve fleeting glimpses of unfamiliar persons in stressful circumstances".

Weight Depends on Circumstances

Weight put upon eyewitness testimony must vary based on the "circumstances of the individual case".

The accuracy of the eyewitness should not be determined by or be "coextensive" with the confidence or honesty of the witness.

The apparent reliability of eyewitness identification can be deceptive, and it is often honest and sincere.

Establishing the credibility of an eyewitness is not sufficient to rely on their evidence as fact. It has been acknowledged that there is a "weak link between the confidence level of a witness and the accuracy of that witness".

Eyewitness evidence is, in essence, a form of opinion evidence that "the basis of which can be very difficult to assess."

Standard of Appellate Review

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”.

In certain cases, evidence from a single eye-witness can be sufficient to establish proof beyond a reasonable doubt.

There is no requirement that an identifying witness be 100% certain. Some equivocation is permitted.

Refusal to Identify the Accused

The judge cannot make a finding that the witnesses withheld identifying the accused due to fear on the basis of demeanour evidence alone.

Juries

Juries must be instructed to account for the "frailties of eyewitness identification" when considering issues such as:

• whether the suspect known to the witness?
• whether the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting?
• whether the sighting by the witness in circumstances of stress?

Juries must also be "instructed to carefully scrutinize the witnesses’ description of the assailant", considering whether it was "vague" and "generic" or "detailed" with "distinctive features".

The judge should also caution on the limited value of in-court identification.

Eye-witness evidence is dangerous as it has a "power effect on jurors".

Weighing Identity Evidence

Bald assertions of identity by witnesses should be given little weight. The Court should consider the facts and foundation of the statement including the opportunity and ability to observe.

One or more courts have recommended that cases resting entirely on eyewitness testimony should require the judge to do the following:

1. recognize the danger of convicting based on eyewitness identification only;
2. note the significant factors which may have affected the identification; and
3. address those factors.

It is "incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact."

The fundamental factors affecting the weight of eyewitness evidence are:

1. opportunity to observe:
   1. light conditions
   2. the distance from the witness to the suspect
   3. the eyesight of the witness
   4. colour perception
2. previous acquaintance with the accused
3. focus of attention or distraction
4. presence or absence of distinctive features or appearance of the suspect/accused
5. the time since making the observations

Extra caution should be taken where the witnesses had a limited opportunity to observe, and the confirmative opportunity occurred while the accused was under arrest.

Absent supporting evidence, a judge cannot say that stress upon the witness is a neutral factor in the accuracy of observations.

General or generic descriptors alone will be accorded only limited weight as there is "no detail that could distinguish the [culprit] from thousands of other people".

A "fleeting glance" will generally be considered unsatisfactory opportunity to observe.

Cross-Racial ID

It has been suggested that "cross-racial" identification evidence has a higher chance of being incorrect and so is even more challenging.

Line-ups

The key rule in giving a photo line-up is that the procedure is fair.

It was recommended in the Sophonow Inquiry that to avoid false identification through line-ups the procedure should include the following:

• The photo pack should contain at least 10 subjects.
• The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
• Everything should be recorded on videotape, or failing that, audiotape. In addition, or as a minimum alternative, all comments of the witness should be recorded verbatim on the form accompanying the line-up and signed by both the officer and the witness.
• The line-up should be presented by an officer who is not involved in the investigation and does not know who the suspect is.
• The officer showing the line-up should advise the witness that he does not know who the suspect is or whether there is a suspect in the line-up. The officer should also tell the witness that it is just as important to clear the innocent as it is to identify the subject.
• The photopack should be presented sequentially, not all together.
• Police officers should not speak to the witness after the line-up regarding his ability or inability to identify anyone.

Several cases have adopted these requirements or something similar.

Generally, improper procedure taints identification evidence, it does not render the evidence inadmissible, it only goes to weight.

Identification based on a single photograph rather than a proper lineup goes to weight and not admissibility.

Other factors considered include:

• evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph.
• opportunity for the witnesses to see the perpetrator;
• Familiarity with the accused prior to court;

The Sophonow guidelines for line-ups are not legally binding and so failure to follow them will not necessarily be fatal to the identification evidence.

The prior familiarity of the witness to the accused is a factor that goes to weight.

A live line-up after completing a photo line-up will add little weight to the witnesses evidence, but is still admissible. When in reverse order the photo line-up is given little weight.

A witness should never be shown a single photo of the accused.

During a live line-up the police should never tell the witness that the suspect is among the line-up.

The accused should not be put in a line-up among those who do not hold a resemblance to him.

Evidence of a live line-up can be excluded where the accused's right to counsel under 10(b) was violated.

The accused's refusal to take part in a lineup is not admissible to establish guilt.

There is a weak link between a witnesses confidence and a witnesses accuracy in identifying a culprit.

Line-ups of One

It is not appropriate for police to engage in the practice of presenting a newly arrested accused before the witness and then seeking confirmation from the person.

Video Identification

Where the video evidence is clear and convincing, the trier-of-fact may use it as the sole basis for the identification of the accused as the perpetrator.

Quality of the video should be sufficient "to be able to recognize facial features such as nose, jaw line, and profile".

A witness can testify to the contents of a video establishing the identity of the accused without showing the video. It is generally considered akin to actual observations.

Threshold for Video Recognition Evidence

A person who is not familiar with the appearance of the accused cannot testify on identification of the accused in a video.

A witness who is familiar with the appearance and idiosyncrasies of the accused that is not apparent to the trier of fact, may testify to identity where the witness can 1) state the particularities of the idiosyncrasies; and 2) can show where the idiosyncrasies are revealed on the video. A voir dire must be held to determine whether the person, such as a police officer, can testify to the likeness of the video image to the suspect.

Dock Identification

Identification of an accused in the dock is generally undesirable and unsatisfactory, and so adds very little weight to the proof of identity.

For purposes of comparison with the eyewitness' evidence, the judge is permitted to observe the accused in court and draw conclusions from similarities and dissimilarities. A judge is also permitted to refuse to observe dissimilarities in appearance of the accused in court.

Recognition

Recognition evidence is "merely a form of identification evidence". Accordingly, all of the 'same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence". This includes all the relevant cautions regarding the frailties of identification.

The "level of familiarity between the accused nad the witness may serve to enhance reliability of the evidence."

Difference from Identity Evidence

Courts have still generally made a distinction between identity evidence and recognition evidence. The difference being that identity involves a witness matching a previously observed stranger with that of the accused. Recognition is where the observer knew the person being observed and the issue is not simply identifying a person by description, but rather recognizing the person through their acquaintanceship.

Recognition evidence is "generally considered to be more reliable and to carry more weight than identification evidence."

Recognition is not a distinct category from identification. Rather they are at different points on a spectrum of reliability. The "extent and quality" of the prior encounters is "but one factor to be considered in weighing the witness's evidence" for the purpose of identification.

Threshold to Admit Recognition Evidence ("Leaney Hearing")

In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity which depends on:

1. the length of the prior relationship between the witness and the accused;
2. the circumstances of the prior relationship between the witness and the accused; and,
3. the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.

It has been observed that in "most cases" recognition evidence will pass the threshold of admissibility.

These indicia go to the weight of the evidence along with "the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused."

Before a person can claim to recognize a person they must establish that they had a prior opportunity to observe personally the accused and become acquaintanced with him.

Recognition simply means that "the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed"

Recognition evidence is considered more reliable and has more weight than identification evidence.

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.

It is significant whether the acquainted eye-witness had seen the accused shortly before observing the incident.

No Lineup Needed

Where the witness asserts a prior familiarity with the culprit, it is not necessary for the police to conduct a full line-up array for the purpose of confirming the identity of the accused through a photo.