Thursday, April 18, 2013

Expert evidence on the frailties of eyewitness evidence not admissible

R. v. Frimpong, 2013 ONCA 243 holds:

[23]       The appellant has two submissions in respect of the expert's evidence, one broad and one more narrow.  The broad submission asks this court to depart from its pronouncement in R. v. McIntosh (1997), 117 C.C.C. (3d) 385 and hold admissible expert evidence explaining in general the frailties and dangers inherent in eyewitness identification evidence.  This record offers no basis for any departure from McIntosh.  Dr. Lindsay's [the defence expert] brief commentary on the abilities of jurors to properly assess identification evidence added nothing to the longstanding debate.  Judges, commentators and social scientists remain divided on whether expert evidence is necessary to assist a jury in assessing eyewitness identification.   

[24]       In urging the court to move away from McIntosh, counsel submits that:

This court should now acknowledge that social science has eclipsed traditional judicial understanding about the value of eyewitness expert evidence.

[25]       With respect, nothing in this record would warrant any such acknowledgement.  The record suggests to us that the arguments for and against the admission of this kind of evidence are the same now as they were when McIntosh was decided.

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