Thursday, February 7, 2013

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."  


Boris said...

A long while back I gave a statement to the Australian police regarding the description of an assailant in an assault I witnessed. It had only happened a few hours beforehand but I remember being surprised at how difficult it was for me to recall specific details of the individual's appearance.

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AMason said...

Eyewitness identification evidence is very different from witness fact recollection. Unless the witness identified the subject person at the scene as someone they knew, a subsequent identification is simply an opinion that the person they see in a photograph or lineup is the same person. There are now judicial rules for arranging lineups and photo books for identification purposes (See Justice Cory's report on the Sophanow Inquiry:

The real problem with eyewitness identification is that it is very susceptible to suggestion. Unless process is strictly controlled as to avoid any influence, and unless it is independently corroborated, it should not be considered reliable in a criminal trial.

But the fragility of eyewitness identification evidence does not mean that eyewitnesses cannot be relied on with respect to evidence of observed facts. Studies show witnesses to be generally accurate (>90%) in recalling salient facts (Loftus, Eyewitness Testimony, first ed. p. 25ff).

The key is to have independent corroboration of eyewitness fact recollection. The chance of two independent sources providing evidence of the same wrong fact by accident is much smaller than the chance of one witness being wrong.

This can be shown mathematically but it is really just common sense.

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