Wednesday, September 11, 2013

Eyewitness identification

R. v. Yigzaw, 2013 ONCA 547:

[47]       In R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17, Epstein J.A. provides a useful summary of the applicable legal principles governing jury instructions relating to eyewitness identification evidence:
The jurisprudence is replete with guidance about how the jury should be instructed in cases where identity is the issue and where, as here, the Crown's ability to satisfy the jury that it was the accused who committed the crime depends on eyewitness identification.
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. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact.
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.
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? Was the sighting by the witness in circumstances of stress?
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? 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.
Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight. [Citations omitted, emphasis in original.]
[48]       I am mindful of the fact that, unlike the present case, Jack was a situation in which the Crown’s case depended solely on eyewitness identification evidence.
[49]       Moreover, I agree with the Crown’s submission that where the Crown’s case does not depend solely on eyewitness identification evidence, but also includes other evidence implicating the accused, trial judges are to be given considerable latitude in determining the nature of the caution about eyewitness identification evidence to be given to the jury. In some cases, a general warning as to the dangers of eyewitness identification evidence will suffice: R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 78.
[50]       Nonetheless, where eyewitness identification evidence contains significant frailties, even in situations where there is other evidence implicating an accused, it may be incumbent on the trial judge to caution the jury as to those specific frailties and not rely on a general “boilerplate” instruction: R. v. Baltovich, at para. 78.
[51]       In this case, the appellant has identified several important frailties in the eyewitness identification of the appellant as the black perpetrator in the first robbery and one of the black perpetrators in the second robbery to which I have already referred:
·        the generic descriptions of the black perpetrator and his clothing provided by the eyewitnesses;
·        the inability of any of the eyewitnesses to explain what features of the appellant led them to identify him as the perpetrator;
·        the failure of any of the eyewitnesses to describe the perpetrator as having any of the distinguishing features possessed by the appellant at the time of his arrest (facial hair; distinctive hat and jacket);
·        Mr. Alomi’s description of the perpetrator as being taller than he is, when, in fact, the appellant is shorter than he is.
[52]       At para. 29 of Jack, Epstein J.A. observed that "eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability” and that “one such ‘badge’ is whether a witness' description of the suspect fails to include mention of a distinctive feature of the accused” [citations omitted]. She noted that, in that case, the caution provided by the trial judge:
simply advise[d] the jury to consider the impact of the evidence that the victims did not notice the appellant's distinctive features. It d[id] not caution them to take this factor into consideration together with the generic description they provided to the police in performing their critical analysis of assessing the reliability of the identification evidence upon which the Crown's case wholly depended.
[55]       In some cases, circumstantial evidence implicating an accused will be so strong that evidence of mere resemblance between an accused and a perpetrator will be enough to complete the circle of proof and strong cautions about specific frailties in eyewitness identification evidence may not be necessary. In my opinion, the circumstantial evidence in this case did not reach this threshold.
[56]       Although compelling, the circumstantial evidence in this case did not eliminate the need for proper instructions highlighting the deficiencies in the eyewitness identification evidence where: the appellant and Chamberlin were found in the company of two other men not identified as perpetrators; there was no forensic evidence connecting any of the four men outside the apartment complex to the recent robbery; and where, unlike Chamberlin and one of the other men, the appellant did not attempt to flee.
[57]       In these circumstances, in my view, the trial judge was required to not only provide the jury with standard cautions relating to the dangers of eyewitness identification evidence, but also to identify for the jury the specific frailties in the eyewitness identification evidence that existed in this case. If anything, rather than bringing home to the jury some of the frailties that existed, the trial judge’s instructions minimized them.
 [71]       The trial judge also failed to caution the jury that in-dock identifications are generally to be afforded little weight (see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at pp. 468-469, R. v. Pelletier, at para. 93). Moreover, when setting out the Crown’s position, he noted that the Crown relied on the fact that the appellant “was picked out of the line-up and visually in court”. Once again, the trial judge may have invited the jury to rely on evidence that was of no probative value. The potential for prejudice existed not only because of the combined impact of five in-dock identifications, but also because Mr. Abdali did not make a pre-trial identification of the appellant. His evidence, in particular, should have been the subject of a forceful in-dock identification caution: see R. v. Tebo (2003), 175 C.C.C. (3d) 116, at para. 20.

[72]       Finally, although the trial judge gave the jury some instructions about how to evaluate the photographic line-up identification evidence, he did not refer to the importance of the eyewitnesses reviewing the photographic line-up sequentially, without taking the opportunity to compare photographs. He therefore did not provide the jury with all the tools necessary to properly evaluate that evidence. The fact that witnesses may have been cross-examined about that issue, or that defence counsel may have referred the jury to that factor, does not overcome the need for a judicial instruction where the need for caution arises, at least in part, as a matter of judicial experience and not solely as a matter of common sense.  

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