Thursday, February 7, 2013

In court identification supported by prior out of court identification

R. v. Johnson, 2013 ONCA 73 holds that when a witness identifies the accused as the offender in court and testifies that he remembers identifying the same person in an out-of-court identification, the prior identification is admissible in support of the in-court identification made by that witness:
[29] This court’s judgment in R. v. Tat and Long provides that when a witness identifies the accused as the offender in court and testifies that he remembers identifying the same person in an out-of-court identification, the prior identification is admissible in support of the in-court identification made by that witness. (para. 35) In the present case, the trial judge admitted Campbell’s preliminary inquiry evidence for the truth of its contents pursuant to R. v. B.(K.G.). The parties agree that the admission of Campbell’s preliminary inquiry identification evidence stood at trial as the equivalent of an in-court identification. The photo line-up evidence was thus admissible to support Campbell’s preliminary inquiry evidence pursuant to Tat.

[30] When evidence of prior identification is admitted pursuant to the Tat principle, it is admitted as original evidence that assists the trier of fact in assessing the cogency of the witness’ in-court identification through a consideration of all of the process relating to that identification. In-court identification, standing alone, can have little probative value coming as it does in the structured setting of the court and often long after the alleged incident. Where the same identification had previously been made, soon after the alleged offence, that is relevant for the jury to consider in evaluating the in-court evidence. For this reason, Tat explains that “the probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification”: para 36. This means that the trier of fact can use the evidence of prior identification to make an informed determination of the weight to be given to the testimony identifying the accused.


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