Eyewitness identification is notoriously unreliable and calls for considerable caution

R. v. Jack, 2013 ONCA 80 is a strong case released today on the frailties of eyewitness identification evidence:

[13]       The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment: see for example R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 19. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact: R. v. Nikolovski, [1996] 3 S.C.R. 1197, at pp. 1209-10;R. v. Bardales, [1996] 2 S.C.R. 461, pp. at 461-62; R. v. Burke, [1996] 1 S.C.R. 474, at p. 498.

[14]       It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established.  The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248, at para. 5; Goran, at paras. 26-27.

[15]       The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry.  Was the suspect known to the witness?  What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? R. v. Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1. Was the sighting by the witness in circumstances of stress? Nikolovski, at 1210; R. v. Francis (2002), 165 O.A.C. 131, at 132. 

[16]       As well, the jury must be instructed to carefully scrutinize the witnesses' description of the assailant.  Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? R. v. Ellis, 2008 ONCA 77, [2008] O.J. No. 361, at paras. 5, 8; R. v. F.A. (2004), 184 O.A.C. 324, at para. 64; R. v. Richards, (2004) 70 O.R. (3d) 737, at para. 9. R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21.  In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

[17]       Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight: R. v. Hibbert, [2002] 2 S.C.R. 445, at pp. 468-69; R. v. Tebo (2003), 172 O.A.C. 148, at para. 19.

...

[31]       The jury should specifically have been given what is known as a Hibbertinstruction. The seeming persuasiveness of eyewitness identification can be misleading as there is a "very weak link between the confidence level of a witness and the accuracy of that witness": Hibbert, at p. 469. This was further discussed in Richards, at para. 33, in which this court noted that "certainty on the part of an honest identification witness is part of the reason that eyewitness identification evidence is dangerous."