Thursday, December 5, 2013

Potential prejudicial effect of photographs

R. v. Araya, 2013 ONCA 734:

[30]       To the extent that the appellant submits that the photos had no probative value, I cannot agree. 

[31]       As the trial judge stated in his ruling, the appellant's appearance had changed materially between the time of the shooting and trial.  At the time of the shooting, the appellant was 18 years of age.  He had a small bit of facial hair on his chin, an afro hairstyle and did not wear glasses.  By the time of trial – some three years later – he had gained a substantial amount of weight, his features had matured, he was shorthaired, clean-shaven, and wore glasses.  Identity was a critical issue at trial.  The trial judge found the photos to be relevant and probative on the basis that the jury needed to know what the appellant looked like at the time of the shooting.  In the circumstances, I see no error in his finding that the photos had probative value.   

[32]       I would accept the appellant's submission, however, that in the circumstances of this case, the photos had minimal probative value.  The defence did not contest the fact that the appellant's appearance at the time of the shooting fit the generic eyewitness descriptions.  (The issue of the small amount of facial hair was raised after the photos were ruled admissible.)  Furthermore, the jury was given evidence on the appellant's appearance at the time of the shooting from both the appellant's teacher, who was extensively examined on this matter, and the appellant's then-girlfriend.  That evidence also confirmed that at the time of the shooting, the appellant fit the generic eyewitness descriptions. 

[33]       I do, however, accept the appellant's submission that the photos had significant prejudicial effect.  As the defence argued at trial, admission of the photos could lead the jury to engage in impermissible reasoning.  That reasoning would be along the following lines.  The photos of the appellant at the time of the shooting reveal a young, thin, relatively clean-shaven black male.  Thus, at the time of the shooting, the appellant fit the eyewitness generic descriptions of the robbers in the tennis courts.  Therefore, the appellant was in the park and/or one of the robbers. 

[34]       The fallacy in this reasoning is readily apparent.  A great many young black men in Toronto on the date of the shooting fit the generic description of the robbers.  That does not mean they were in the park or one of the robbers.  The photos' relevance went only to the question of whether the appellant had some or all of the physical attributes described by the eye witnesses.  

[35]       The dangers flowing from this type of impermissible reasoning are underscored by the fact that the evidence in question are photographs and that the only photographs admitted into evidence were those of the appellant. 

[36]       Photographs can be powerful.  The dangers associated with the use of single photos for identification purposes have been well documented: see R. v. Smierciak, [1947] 2 D.L.R. 156 (Ont. C.A.); R. v. Sutton [1970] 2 O.R. 358 (C.A.); R. v. Goldhar(1941), 76 C.C.C. 270 (Ont. C.A).  Canadian courts have recognized that the use of single photos for identification purposes compromises the independence of a witness's judgment through "suggestion, assistance or bias created directly or indirectly": Smierciak, at p. 157.  The risk is that "the person who has seen the photograph will have stamped upon his memory the face he has seen in the photograph, rather than the face he saw on the occasion of the crime": Goldhar, at p. 271. 

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