FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE

5. EYEWITNESS IDENTIFICATION AND TESTIMONY


5. EYEWITNESS IDENTIFICATION AND TESTIMONY

I. INTRODUCTION

There is no denying the powerful impact at trial of a witness for the prosecution stating with confidence and conviction that the accused was the person observed committing the crime. However, experience has shown that erroneous and mistaken identifications have and do occur, resulting in the wrongful conviction of the factually innocent. The most well meaning, honest and genuine eyewitness can, and has been, wrong.[121]

Consider the case of Jennifer Thompson, a North Carolina woman who was raped at knifepoint as a 22-year-old college student:[122]

During my ordeal, some of my determination took an urgent new direction. I studied every single detail on the rapist’s face. I looked at his hairline; I looked for scars, for tattoos, for anything that would help me identify him. When and if I survived the attack, I was going to make sure that he was put in prison and he was going to rot.

When I went to the police department later that day, I worked on a composite sketch to the very best of my ability. I looked through hundreds of noses and eyes and eyebrows and hairlines and nostrils and lips. Several days later, looking at a series of police photos, I identified my attacker. I knew this was the man. I was completely confident. I was sure.

I picked the same man in a lineup. Again, I was sure. I knew it. I had picked the right guy, and he was going to go to jail. If there was the possibility of a death sentence, I wanted him to die. I wanted to flip the switch.

When the case went to trial, I stood up on the stand, put my hand on the Bible and swore to tell the truth. Based on my testimony, Ronald Cotton was sentenced to prison for life. It was the happiest day of my life because I could begin to put it all behind me.

Eleven years later, DNA testing proved Cotton had not been the rapist. Another man later pleaded guilty. The Innocence Project in New York City reports that in the first 130 post-conviction exonerations based on new DNA evidence, 101 (78 per cent) involved mistaken identification, by far the leading factor.[123] The danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere.[124] If the means used to obtain evidence of identification involve any acts that might reasonably prejudice the accused, the resulting contamination will be virtually impossible to cleanse and the value of the evidence may be partially or wholly destroyed.[125]

The positive identification of an accused is an essential element of any offence. It is a fundamental part of the criminal process. Properly obtained, preserved and presented, eyewitness testimony directly linking the accused to the commission of the offence, is likely the most significant evidence of the prosecution.

Courts have acknowledged the frailties of eyewitness identifications and a significant body of legal decisions and opinions has been generated over the years. The recent commissions of inquiry have determined that misidentification by eyewitnesses has been the foundation for miscarriages of justice. Furthermore, the way that eyewitness identifications are gathered are factors that affect the validity of that evidence. This chapter sets out practical suggestions, guidelines and recommendations for police agencies and prosecutors:

  1. to serve as safeguards to preserve the integrity, quality and reliability of identification evidence;
  2. to reinforce the notion that prosecutions based on eyewitness identification can be undertaken with confidence; and
  3. to reinforce and preserve credibility in the investigation and trial process, while ensuring and maintaining the fairness of the proceedings.

II. CANADIAN COMMISSIONS OF INQUIRY

a) The Commission on Proceedings Involving Guy Paul Morin

Recommendation 101 - Police protocols for interviewing to enhance reliability

The Ministry of the Solicitor General should establish province-wide written protocols for the interviewing of suspects and witnesses by police officers. These protocols should be designed to enhance the reliability of the product of the interview process and to accurately preserve the contents of the interview.

Recommendation 102 - Training respecting interviewing protocols

All Ontario investigators should be fully trained as to the techniques which enhance the reliability of witness statements and as to the techniques which detract from their reliability. This training should draw upon the lessons learned at this Inquiry. Financial and other resources must be provided to ensure that such training takes place.

Recommendation 103 - Prevention of contamination of witnesses through information conveyed

Police officers should be specifically instructed on the dangers of unnecessarily communicating information (known to them) to a witness, where such information may colour that witness’ account of events.

Recommendation 104 - Prevention of contamination of witnesses through commentary on case or accused

Police officers should be specifically instructed on the dangers of communicating their assessment of the strength of the case against a suspect or accused, their opinion of the accused’s character, or analogous comments to a witness, which may colour that witness’ account of events.

Recommendation 106 - Crown education respecting interviewing practices

The Ministry of the Attorney General should establish educational programming to better train Crown counsel about interviewing techniques on their part which enhance, rather than detract, from reliability. The Ministry may also reflect some of the desirable and undesirable practices in its Crown policy manual.

Recommendation 107 - Conduct of Crown interviews
  1. Counsel should generally not discuss evidence with witnesses collectively.
  2. A witness’ memory should be exhausted, through questioning and through, for example, the use of the witness’ own statements or notes, before any reference is made (if at all) to conflicting evidence.
  3. The witness’ recollection should be recorded by counsel in writing. It is sometimes advisable that the interview be conducted in the presence of an officer or other person, depending on the circumstances.
  4. Questioning of the witness should be non-suggestive.
  5. Counsel may then choose to alert the witness to conflicting evidence and invite comment.
  6. In doing so, counsel should be mindful of the dangers associated with this practice.
  7. It is wise to advise the witness that it is his or her own evidence that is desired, that the witness is not simply to adopt the conflicting evidence in preference to the witness’ own honest and independent recollection and that he or she is, of course, free to reject the other evidence. This is no less true if several other witnesses have given conflicting evidence.
  8. Under no circumstances should counsel tell the witness that he or she is wrong.
  9. Where the witness changes his or her anticipated evidence, the new evidence should be recorded in writing.
  10. Where a witness is patently impressionable or highly suggestible, counsel may be well advised not to put conflicting evidence to the witness, in the exercise of discretion.
  11. Facts which are obviously uncontested or uncontestable may be approached in another way. This accords with common sense.

b) The Inquiry Regarding Thomas Sophonow

Eyewitness Identification
Live line-up
  • The third officer who is present with the prospective eyewitness should have no knowledge of the case or whether the suspect is contained in the line-up.
  • The officer in the room should advise the witness that he does not know if the suspect is in the line-up or, if he is, who he is. The officer should emphasize to the witness that the suspect may not be in the line-up.
  • All proceedings in the witness room while the line-up is being watched should be recorded, preferably by videotape but, if not, by audiotape.
  • All statements of the witness on reviewing the line-up must be both noted and recorded verbatim and signed by the witness.
  • When the line-up is completed, the witness should be escorted from the police premises. This will eliminate any possibility of contamination of that witness by other officers, particularly those involved in the investigation of the crime itself.
  • The fillers in the line-up should match as closely as possible the descriptions given by the eyewitnesses at the time of the event. It is only if that is impossible, that the fillers should resemble the suspect as closely as possible.
  • At the conclusion of the line-up, if there has been any identification, there should be a question posed to the witness as to the degree of certainty of identification. The question and answer must be both noted and recorded verbatim and signed by the witness. It is important to have this report on record before there is any possibility of contamination or reinforcement of the witness.
  • The line-up should contain a minimum of 10 persons. The greater the number of persons in the line-up, the less likelihood there is of a wrong identification.
Photo pack line-up
  • The photo pack should contain at least 10 subjects.
  • The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
  • Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.
  • Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.
  • The photo pack must be presented sequentially and not as a package.
  • In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.
  • Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.
  • It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process.
Trial instructions
  • There must be strong and clear directions given by the trial judge to the jury emphasizing the frailties of eyewitness identification. The jury should as well be instructed that the apparent confidence of a witness as to his or her identification is not a criteria of the accuracy of the identification. (In this case, the evidence of Mr. Janower provides a classic example of misplaced but absolute confidence that Thomas Sophonow was the man whom he saw at the donut shop.)
  • The trial judge should stress that tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses. It should be explained that the vast majority of the wrongful convictions of innocent persons have arisen as a result of faulty eyewitness identification. These instructions should be given in addition to the standard direction regarding the difficulties inherent in eyewitness identification.
  • Further, I would recommend that judges consider favourably and readily admit properly qualified expert evidence pertaining to eyewitness identification. This is certainly not junk science. Careful studies have been made with regard to memory and its effect upon eyewitness identification. Jurors would benefit from the studies and learning of experts in this field. Meticulous studies of human memory and eyewitness identification have been conducted. The empirical evidence has been compiled. The tragic consequences of mistaken eyewitness identification in cases have been chronicled and jurors and trial judges should have the benefit of expert evidence on this important subject. The expert witness can explain the process of memory and its frailties and dispel myths, such as that which assesses the accuracy of identification by the certainty of a witness. The testimony of an expert in this field would be helpful to the triers of fact and assist in providing a fair trial.
  • The trial judge must instruct and caution the jury with regard to an identification which has apparently progressed from tentative to certain and to consider what may have brought about that change.
  • During the instructions, the trial judge should advise the jury that mistaken eyewitness identification has been a significant factor in wrongful convictions of accused in the United States and in Canada, with a possible reference to the Thomas Sophonow case.

III. MACFARLANE PAPER

In his paper, Bruce MacFarlane Q.C., notes that eyewitness misidentification is “the single most important factor leading to wrongful convictions.”[126] After reviewing the problems and dangers inherent with this evidence and the potential for tainting at the investigation stage, MacFarlane formulated six core rules to reduce the risk of an eyewitness contributing to the conviction of someone who is factually innocent:[127]

An officer who is independent of the investigation should be in charge of the lineup or photospread. The officer should not know who the suspect is – avoiding the possibility of inadvertent hints or reactions that could lead the witness before the identification takes place, or increase the witness’ degree of confidence afterward.

The witness should be advised that the actual perpetrator may not be in the lineup or photospread, and therefore they should not feel that they must make an identification. They should also be told that the person administering the lineup does not know which person is the suspect in the case.

The suspect should not stand out in the lineup or photospread as being different from the others, based on the eyewitness’ previous description of the perpetrator, or based on other factors that would draw extra attention to the suspect.

A clear statement should be taken from the eyewitness at the time of the identification, and prior to any possible feedback, as to his or her confidence that the identified person is the actual culprit.

On completion of the identification process, the witness should be escorted from the police premises to avoid contamination of the witness by other officers, particularly those involved in the investigation in question.

Show-ups should be used only in rare circumstances, such as when the suspect is apprehended near the crime scene shortly after the event. There are two further steps that may be helpful. They should be done wherever reasonably practicable:

  1. The identification process, whether by lineup, photograph or composite, should be recorded throughout, preferably by videotape but, if not, by audiotape.
  2. A photospread should be provided sequentially and not as a package, thus preventing “relative judgments.”

These reforms do not require new legislation, nor are they particularly resource-intensive. They can be accomplished through policy changes by local authorities as part of a strategy to fight crime and ensure that justice is truly done.

IV. CASE LAW

Courts have long recognized the frailties of identification evidence given by independent, honest and well-meaning eyewitnesses.[128]

The Supreme Court of Canada has stated:[129]

The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.

When the prosecution's case depends substantially upon the accuracy of eyewitness identification, a trial judge is required to specifically instruct the jury on the need for caution when dealing with such evidence,[130] given the documented unreliability of such identification. The charge must not only deal with issues of credibility, but also with the inherent frailties of identification evidence because of the unreliability of human observation and recollection.[131] The trial judge should also instruct the jury about the various factors that can affect the reliability of eyewitness identification evidence and remind the jury that mistaken identification has been responsible for miscarriages of justice by reason of the wrongful conviction of persons who have been mistakenly identified by one or more honest witnesses.[132]

It is clear that an accused can be convicted on uncorroborated eyewitness identification evidence.[133] In fact, despite all the potential dangers, an accused may be found guilty on the basis of the testimony of a single eyewitness.[134] A first time in-dock identification, though admissible,[135] has little weight and has particular frailties over and above the normal frailties associated with identification evidence. It is therefore considered undesirable and unsatisfactory.[136] A specific warning should be given to a jury when considering the impact of this form of evidence.[137] If an eyewitness’s evidence becomes stronger with the passage of time as the matter proceeds through the court, this may imply that the identification is in fact “post-event reconstruction,” which undermines its reliability.[138]

Regardless of the number of similar characteristics an eyewitness testifies about a particular accused, if there is one dissimilar feature, there is no identification without other sources of confirming evidence.[139] A minor error about one feature of the accused’s appearance, however, may not rob the identification evidence of all weight.[140] Weak identification evidence may be enhanced by other circumstantial evidence so as to render a verdict reasonable.[141]

Improprieties in police procedures do not necessarily destroy the identification evidence or render it inadmissible.[142] Where the police use improper procedures in obtaining identification evidence, the evidence can be left with the jury. But the trial judge should caution the jury on the circumstances in which the identification evidence was obtained.[143]

It is perfectly permissible and helpful to the trier of fact to lead evidence of descriptions given by witnesses to police officers shortly after the crime. Such evidence is an exception to the common law rule prohibiting prior consistent statements.[144]In R. v. Tat,[145] the Ontario Court of Appeal set out two preconditions for the use of a previously-recorded description:

  • Prior statements that identify or describe the accused may be admitted where the witness identifies the accused at trial, so that the trier of fact may make an informed assessment of the probative value of the purported identification.
  • Prior out-of-court identification may also be admitted where the identifying witness is unable to identifythe accused at trial, but can testify that he or she previously gave an accurate description or made an identification. Where the witness testifies that he or she previously identified the perpetrator, evidence of out-of-court statements is admissible, as originalevidence to show whomit was that the witness identified.[146]

Consideration should also be given to the use of a K.G.B. application in the appropriate circumstances if a witness is refusing or unable to cooperate in accordance with a previous statement.

The admissibility and relevance of expert evidence in the area of eyewitness misidentification remains a thorny issue. Despite calls from commissions of inquiry for greater use of this type of opinion evidence,[147] judges continue to resist the introduction of an expert in an area that is, in reality, in the realm of the knowledge of the trier of fact.

The guiding principles respecting the admission of expert evidence are found in the Supreme Court of Canada decision of R. v. Mohan.[148] In that case, the admission of expert evidence depended on the application of the following criteria:

  1. relevance;
  2. necessity in assisting the trier of fact;
  3. absence of any exclusionary rule; and
  4. a properly qualified expert.

Expert evidence is admissible if exceptional issues require special knowledge outside the experience of the trier of fact. It has been held that expert evidence in the area of eyewitness identification is not of a special nature outside of the jury’s knowledge, but rather a reaffirmation of their normal experiences. The jury does not need the expert’s testimony to do its job - a proper charge and caution can best deal with the inherent dangers of identification evidence.[149]

A trial judge or a jury may use a videotape to make their own assessment of whether the person shown on tape is the accused. They are also entitled to use any identification they have made in this way as the sole basis for conviction, though the judge is required to instruct the jury to exercise caution in attempting to identify an accused person from a videotape.[150] It is not necessary or relevant for police officers to give their own non-expert opinion about who is shown in the videotape, as the trier of fact can make their own evaluation and arrive at their own conclusion.[151]

V. SUGGESTED PRACTICES AND RECOMMENDATIONS

It is clear from the case law and the inquiry recommendations that the honesty and sincerity of the eyewitness is not determinative of the quality of the identification. Rather, there must be due and detailed scrutiny to determine whether it is reliable. These indicia of reliability include, but are not limited to:

  • Was the suspect a complete stranger or known to the witness?
  • Was the opportunity to see the suspect a fleeting glimpse or something more substantial?
  • What were the lighting and other physical conditions at the time of observation?
  • Was the description reduced to writing or reported in detail in a timely fashion?
  • Is the description general and vague or descriptive in detail including distinctive features of the suspect and their clothing?
  • Was there a potential tainting or contamination of the identification?
  • Has the witness described a distinguishing feature of the suspect or failed to mention a distinguishing feature?
  • Has the eyewitness identification been confirmed in some particular?

Proper interview techniques and procedures by police and prosecutors are essential to ensure the reliability of identification evidence and minimize and eliminate the potential contamination.

The six core rules set out by Bruce MacFarlane represent a good starting point for reasonable standards of practice that should be implemented and integrated by all police agencies. Collectively, the purpose of the core rules is to minimize the possibility of contamination of the identification evidence, however inadvertent, by outside influences. However, these guidelines must be designed in a manner that takes into account for the realities of day-to-day police investigations, having regard to the impact they will have on resources and manpower. Accordingly, it is proposed that the core rules be qualified as follows:

  1. If possible, an officer who is independent of the investigation should be in charge of the lineup or photospread. This officer should not know who the suspect is – avoiding the possibility of inadvertent hints or reactions that could lead the witness before the identification takes place, or increase the witness’s degree of confidence afterward.
  2. The witness should be advised that the actual perpetrator may not be in the lineup or photospread, and therefore they should not feel that they must make an identification.
  3. The suspect should not stand out in the lineup or photospread as being different from the others, based on the eyewitness’ previous description of the perpetrator, or based on other factors that would draw extra attention to the suspect.
  4. All of the witness’s comments and statements made during the lineup or photospread viewing should be recorded verbatim, either in writing or if feasible and practical, by audio or videotaping.
  5. If the identification process occurs on police premises, reasonable steps should be taken to remove the witness on completion of the lineup to prevent any potential feedback by other officers involved in the investigation and cross-contamination by contact with other witnesses.
  6. Show-ups[152] should be used only in rare circumstances, such as when the suspect is apprehended near the crime scene shortly after the event.
  7. A photospread should be provided sequentially, and not as a package, thus preventing ‘relative judgments.’

Ten police agencies from across the country were contacted to determine their current practices and policies with respect to lineups and photospreads. Presently, four agencies use sequential photospreads, while four others are studying proposals to incorporate this practice. Five agencies use one-sheet photospreads, while the remainder use between 8 and 12 individual photographs. Three of the agencies require officers not involved in the investigation to conduct the photospread with the eyewitness. All agencies use filler photographs that mirror the suspect’s attributes. None of the agencies condone discussions about the witness’s choice. All the agencies require the witness’s comments to be recorded, while two departments prefer the use of videotaping.

These rules represent best practices that should be adopted by police investigators. Through the elimination of all suggestions or suspicions of a potential contamination, the integrity of the investigators and confidence in the investigation will be significantly enhanced.

Concerns have also been raised about the potential for media interference in the investigation process. Despite the best of intentions, the media’s virtually unlimited access to information has created an enormous problem and challenge for policing. Reporters interview witnesses before investigators are involved; images and names of suspects, together with specific details of crimes under investigation, are routinely published and broadcast. The potential for the tainting of identification evidence is significant. While the role of the media is outside of the mandate of this Working Group, the importance of getting a witness’s version of events as early and as completely in the investigation before the impact of media contamination cannot be stressed enough.

The possibility of contamination and misuse can also arise at the prosecution stage as well. For prosecutors, the following practical suggestions should be considered:

  • Assume the identity of the accused is always at issue unless the defence specifically admits it on the record. Timely preparation and a critical review of all of the available identification evidence, including the manner in which it was obtained, is required as it will affect the conduct and quality of the trial.
  • Allow the witness a reasonable opportunity to review all previously given statements and confirm that the statements were accurate and a true reflection of their observations at the time. Carefully canvass the full range of the indicia of the identification, including any distinguishing features that augment this evidence. Remember that it is the collective impact of all of the evidence that will be considered in support of a conviction. Defects in one witness’s identification can be overcome by the consideration of other evidence.
  • Never interview witnesses collectively. Never prompt or coach a witness by offering clues or hints about the identity of the accused in court. Do not condone or participate in a “show-up” lineup. Never show a witness an isolated photograph or image of an accused during the interview.
  • When meeting with witnesses in serious cases, it is wise, if it is feasible and practical, to have a third party present to ensure there is no later disagreement about what took place at the meeting.
  • Never tell a witness that they are right or wrong in their identification.
  • Remember that disclosure is a continuing obligation. All inculpatory and exculpatory evidence must be disclosed to the defence in a timely fashion. In the event that a witness materially changes their original statement, by offering more or recanting previously given information during an interview, the defence must be told. In these circumstances, it would be prudent to enlist the services of a police officer to record a further statement in writing setting out these material changes.
  • Always lead evidence of the history of the identification. It is vitally important that the trier of fact not only be told of the identification but all the circumstances involved in obtaining it, i.e. the composition of photospread.
  • Be wary of prosecutions based on weak single-witness identification. While not required by law to secure a conviction, ascertain whether there is any corroboration of an eyewitness’s identification in order to overcome any deficiencies in the quality of that evidence.

As can be seen, proper interview techniques are important skills to be used by both police and prosecutors. Knowing what questions to ask, what information is sought, and most importantly how to ask the questions, are the essential elements to ensure that the potential evidence is free from contamination. It is therefore recommended that workshops on proper interviewing techniques be part of regular and ongoing training sessions for police and prosecutors to enhance the reliability and accuracy of the evidence-gathering and tendering process.

The tendering of expert evidence on the frailties of eyewitness identification at trial is not recommended. It is redundant and usurps the function and role of the trier of fact. This is not information that is outside the regular knowledge of the jury and has the potential to distort the fact-finding process. The dangers inherent in eyewitness identification are well-documented and can be best dealt with by a proper caution by the court. However, police and prosecutors would benefit from this expertise to highlight and better appreciate the perils of eyewitness misidentifications. Therefore it is recommended that these presentations be incorporated in regular and on-going training sessions.

Procedural fairness is the cornerstone of the legal process. If due diligence is employed in gathering, cataloguing and presenting eyewitness identification, while acknowledging the inherent frailties associated with it, the likelihood of miscarriages of justice will be significantly reduced.

VI. SUMMARY OF RECOMMENDATIONS

  1. The following are reasonable standards and practices that should be implemented and integrated by all police agencies:
    1. If possible, an officer who is independent of the investigation should be in charge of the lineup or photospread. This officer should not know who the suspect is – avoiding the possibility of inadvertent hints or reactions that could lead the witness before the identification takes place, or increase the witness’s degree of confidence afterward.
    2. The witness should be advised that the actual perpetrator may not be in the lineup or photospread, and therefore the witness should not feel that they must make an identification.
    3. The suspect should not stand out in the lineup or photospread as being different from the others, based on the eyewitness’s previous description of the perpetrator, or based on other factors that would draw extra attention to the suspect.
    4. All of the witness’s comments and statements made during the lineup or photospread viewing should be recorded verbatim, either in writing or if feasible and practical, by audio or videotaping.
    5. If the identification process occurs on police premises, reasonable steps should be taken to remove the witness on completion of the lineup to prevent any potential feedback by other officers involved in the investigation and cross contamination by contact with other witnesses.
    6. Show-ups should be used only in rare circumstances, such as when the suspect is apprehended near the crime scene shortly after the event.
    7. A photospread should be provided sequentially, and not as a package, thus preventing ‘relative judgments.’
  2. For prosecutors, the following practical suggestions should be considered:
    1. Assume the identity of the accused is always at issue unless the defence specifically admits it on the record. Timely preparation and a critical review of all of the available identification evidence, including the manner in which it was obtained, is required as it will affect the conduct and quality of the trial.
    2. Allow the witness a reasonable opportunity to review all previously given statements and confirm that the statements were accurate and a true reflection of their observations at the time. Carefully canvass the full range of the indicia of the identification, including any distinguishing features that augment this evidence. Remember that it is the collective impact of all of the evidence that will be considered in support of a conviction. Defects in one witness’s identification can be overcome by the consideration of other evidence.
    3. Never interview witnesses collectively. Never prompt or coach a witness by offering clues or hints about the identity of the accused in court. Do not condone or participate in a “show-up” lineup. Never show a witness an isolated photograph or image of an accused during the interview.
    4. When meeting with witnesses in serious cases, it is wise, if it is feasible and practical, to have a third party present to ensure there is no later disagreement about what took place at the meeting.
    5. Never tell a witness that they are right or wrong in their identification.
    6. Remember that disclosure is a continuing obligation. All inculpatory and exculpatory evidence must be disclosed to the defence in a timely fashion. In the event that a witness materially changes their original statement, by offering more or recanting previously given information during an interview, the defence must be told. In these circumstances, it would be prudent to enlist the services of a police officer to record a further statement in writing setting out these material changes.
    7. Always lead evidence of the history of the identification. It is vitally important that the trier of fact not only be told of the identification but all the circumstances involved in obtaining it, i.e. the composition of photospread.
    8. Be wary of prosecutions based on weak single-witness identification. While not required by law to secure a conviction, ascertain whether there is any corroboration of an eyewitness’s identification in order to overcome any deficiencies in the quality of that evidence.
  3. The use of expert evidence on the frailties of eyewitness identification is redundant and unnecessary in the fact-finding process. A proper charge and caution by the trial judge can best deal with the inherent dangers of identification evidence.
  4. Workshops on proper interviewing should be incorporated in regular and ongoing training sessions for police and prosecutors.
  5. Presentations on the perils of eyewitness misidentifications should be incorporated in regular and ongoing training sessions for police and prosecutors.

  • [121] The case of Adolph Beck, from England, is one of the most notorious cases of misidentification. Twice convicted of fraud in 1896 and 1904, based on the testimony of no less then ten witnesses who positively identified him as the perpetrator, he was jailed, only to be subsequently pardoned when the true offender was located.
  • [122] ‘I was Certain, but I Was Wrong,’ New York Times, June 18, 2000.
  • [123] Actual Innocence, p. 365.
  • [124] R. v. Hibbert (2002), 163 C.C.C. (3d) 129 (S.C.C.).
  • [125] Rex v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.) at 177; R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.).
  • [126] p. 47.
  • [127] pp. 80-81.
  • [128] R. v. Nikolovski (1996), 111 C.C.C. (3d) 403 (S.C.C.) at 412.
  • [129] Burke v. The Queen (1996), 105 C.C.C. (3d) 205 (S.C.C.) at 224.
  • [130]See also Bardales v. The Queen, [1996] 2 S.C.R. 461; R. v. Fengstad (1994), 27 C.R. (4th) 383 (B.C.C.A.); R. v. Sophonow (no. 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.); R. v. Wristen (1999), 47 O.R. (3d) 66 (C.A.) at para. 32.
  • [131] R. v. Sutton, [1970] 2 O.R. 358, [1970] 3 C.C.C. 152 (C.A.); R. v. Miaponoose (1996), 30 O.R. (3d) 419, 110 C.C.C. (3d) 445 (C.A.); R. v. Mezzo, [1986] 1 S.C.R. 802, 27 C.C.C. (3d) 97; R. v. Turnbull, [1976] 3 All E.R. 549, 63 Cr. App. R. 132 (C.A.).
  • [132] R. v. Sutton, infra.
  • [133]R. v. Lussier (1980) , 57 C.C.C. (2d) 536 at page 538 (Ont. C.A.).
  • [134]R. v. Nikolovski (1996), 111 C.C.C. (3d) 403 (S.C.C.); R. v. Hutton (1980), 43 N.S.R. (2d) 541 (N.S.C.A.).
  • [135] R. v. Hibbert (2002) 163 C.C.C. (3d) 129 (S.C.C.).
  • [136] R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.).
  • [137] R. v. Tebo (2003), 175 C.C.C. (3d) 116 (Ont. C.A.); R. v. Walsh, [1997] O.J. No. 149 (C.A.).
  • [138] R. v. Lussier, [1998] B.C.J. No. 2678 (C.A.).
  • [139] Chartier v. A.G. Quebec (1979) 48 C.C.C. (2d) 34 (S.C.C.); R. v. Tomasetti [2002] M.J. No. 486 (C.A.).
  • [140] R. v. Malone (1984), 11 C.C.C. (3d) 34 (Ont. C.A.).
  • [141] R. v. Robinson, [1998] O.J. No. 2081 (C.A.).
  • [142] R. v. Mezzo, infra.
  • [143] R. v. D’Amico (1993), 16 O.R. (3d) 125 (C.A.) at 129; see also R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.).
  • [144] R. v. Langille (1990), 59 C.C.C. (3d) 544 (Ont. C.A.).
  • [145] (1997), 117 C.C.C. (3d) 481 (Ont. C.A.).
  • [146] Ibid., at 498-99; see also R. v. Starr (2000 ), 147 C.C.C. ( 3d) 449 (S.C.C.).
  • [147] See Sophonow Inquiry.
  • [148] [1994] 2 S.C.R. 9.
  • [149] R. v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.); R. v. Maragh, [2003] O.J. No. 3575 (S.C.J.); R. v. D.D. (2000), 148 C.C.C. (3d) 41 (S.C.C.). But note, in the decision of R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), the Ontario Court of Appeal appeared to suggest that expert evidence might be appropriate where the Crown’s case is based on a single eyewitness to the event, so this issue remains a live one.
  • [150] R. v. Nikolovski (1996), 111 C.C.C. (3d) 403 (S.C.C.).
  • [151] R. v. Cuming (2001) 158 C.C.C. (3d) 433 ( Ont. C. A. ).
  • [152] A ‘show-up’ is the act of presenting a solitary suspect in person to the witness, at some point in the pre-trial investigation, for identification - for example, inviting a witness to attend a court hearing where the accused is appearing in person and then asking if the witness recognizes the individual.

Date modified: