Chapter 5 – Eyewitness Identification and Testimony

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I. Introduction

Eyewitness identification is a critical tool for investigating and prosecuting criminals. This type of evidence is among the most persuasive testimony that can be used in a courtroom. A positive identification of an accused in court is an essential element for any successful prosecution. It is powerful and compelling evidence often given by confident and positive witnesses. It allows a police agency the opportunity to focus its attention and efforts on a specific suspect.

However, we know that mistakes have happened. Well-meaning, honest and credible people can and have been wrong and the consequences have been devastating – an innocent person is wrongly targeted and wrongly convicted while the real perpetrator freely walks the streets.

Eyewitness misidentification has long been regarded as the leading, if not overwhelming, cause of a wrongful conviction.Footnote 127 In R. v. Hanemaayer, Mr. Justice Marc Rosenberg, speaking on behalf of the unanimous Ontario Court of Appeal, commented on “how flawed identification procedures can contribute to miscarriages of justice and the importance of taking great care in conducting those procedures.”Footnote 128

A 2008 study by the United States-based Innocence Project of 250 post-conviction DNA exonerations found that a staggering 75% of those wrongfully convicted involved erroneous eyewitness identification.Footnote 129

Eyewitness misidentification can set in motion a chain of irrevocable errors from the police precinct to the courtroom – deterring police officers from discovering the real perpetrator, raising criminal charges against an innocent person, and compelling the jury toward a guilty verdict. It is the criminal justice system’s responsibility to help eyewitnesses make the most accurate identification possible. Eyewitnesses, law enforcement and the public at large, will benefit from identification procedures that are designed according to scientific research and conducted consistently nationwide.Footnote 130

While some commentators have suggested the issue is not as prevalent in Canada because of safeguards built in to our trial system,Footnote 131 it has been universally accepted that the inherent frailties of eyewitness identification have been a real and substantial cause of wrongful convictions.

As Mr. Justice David Doherty of the Ontario Court of Appeal has stated:

[T]he spectre of erroneous convictions based on honest and convincing but mistaken eyewitness identification haunts the criminal law.Footnote 132

II. 2005 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 to avoid 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-upsFootnote 133 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, e.g. the composition of the 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.

The purpose of the recommendations was to reinforce the need to be diligent and vigilant in preserving the integrity of the identification process. Furthermore, they would also serve as a constant reminder of the potential abuse by otherwise faulty or tainted eyewitness testimony should the mandated safeguards be relaxed.

III. Canadian Commissions of Inquiry Since 2005

None of the inquiries since 2005 have dealt specifically with the problem of eyewitness identification.

IV. Legal Developments and Commentary

The need for a direction warning the jury of any specific weaknesses in the evidence, particularly when dealing with identification evidence, has long been recognized.Footnote 134

Where the prosecution’s case depends substantially on the accuracy of eyewitness identification evidence, a trial judge must instruct jurors about the need for them to be cautious in dealing with eyewitness testimony. The charge must deal with the inherent frailties of eyewitness identification due to the unreliability of human observation and recollection. The trial judge should explain to the jury the myriad factors that can affect the reliability of eyewitness identification testimony given by perfectly honest witnesses and remind jurors that mistaken identifications have been responsible for miscarriages of justice because persons who have been mistakenly identified by one or more honest witnesses have been wrongly convicted.

In R. v. Candir,Footnote 135 Mr. Justice David Watt of the Ontario Court of Appeal dealt with the issue of when a more specific instruction to the jury on eyewitness identification was mandated:

Sometimes a general warning about the risks of error inherent in eyewitness identification testimony will be sufficient to caution jurors about reliance upon it. In other instances, more detailed and specific instructions will be required because of specific frailties that emerge as the witnesses are questioned at trial. Trial judges have considerable latitude in deciding how best to apprise the jurors about the frailties of eyewitness identification testimony.Footnote 136

Examples of specific frailties that require specific instruction include:

How far should these general or specific cautions go? In R. v. Sokolov,Footnote 142 Mr. Justice Melvyn Green of the Ontario Court of Justice, noting “eyewitness misidentification is probably the greatest single cause of factually wrongful convictions,” stated:

Its inherent frailties demand that special care must be taken in the assessment of such evidence. Such care, however, does not translate into a rule of exclusion or complete probative negation. It is most certainly not the rule that eyewitness identification evidence — even standing alone — can never ground a proper conviction. The rule, rather, is that the exercise of adjudication in this type of case must be especially cautious.Footnote 143

A proper instruction should warn and inform not chill.

A concern has arisen by the increasingly common practice of defence counsel referring in their submissions to juries to the growing number of wrongful convictions, often by case name and history. How far should counsel be permitted to go in making such submissions and what response if any, should be made by the prosecution? The potential effects of these types of submissions are further compounded in matters where eyewitness evidence is material and the court is mandated to provide strong instructions to a jury.

In R. v. Horan,Footnote 144 Mr. Justice Marc Rosenberg identified this concern:

Moreover, it is now a standard part of the jury instructions relating to identification evidence to expressly draw to the jury’s attention that there have been past miscarriages of justice and wrongful convictions because of mistakes by eyewitnesses. On the other hand, reference in a jury address to a parade of wrongful convictions outside a relevant context, such as the established phenomenon of eyewitness identification, risks inviting the jury to take into account irrelevant considerations and imaginary dangers…The invitation to avoid convicting so as not to add to the list of the wrongfully convicted is a form of intimidation that can be compared to the “timid juror” instruction disapproved of by this court.Footnote 145

The concern in the case was the submission by defence counsel to the jury and its potential prejudicial effect on the proceedings:

Relying on the evidence of the McPhails, without more, in my respectful submission, would risk yet [another] wrongful conviction in Canada’s parade of wrongful convictions. Those were the witnesses for the prosecutor. That’s the best he had. [Emphasis added]Footnote 146

Justice Rosenberg held that while counsel should not have made the comment, the trial was not rendered unfair as a result. Justice Rosenberg then went on to outline guidelines on the parameters and limitations that should be placed on submissions of this nature:

  1. A passing reference to the potential of wrongful conviction in any criminal case is not beyond the bounds of legitimate argument. For example, reminding the jury that they stand between the accused and the state to prevent the conviction of an innocent accused or that their responsibility is to protect persons from the possibility of a wrongful conviction is well within the bounds of legitimate argument;
  2. Ordinarily, a reference to the history in Canada of demonstrated wrongful convictions will not assist the jury in their task. The jury is to reach its verdict on the evidence adduced in the case before them. In particular, defence counsel should not overstate the problem of wrongful convictions. For example, there is nothing in our legal history to support the suggestion that there has been a “parade” of wrongful convictions as a result of complaints by drug users, which essentially was the submission made by defence counsel in this case;
  3. Counsel ought not to refer to specific cases such as the wrongful convictions of Guy Paul Morin or Thomas Sophonow or attempt to draw parallels with those cases. The circumstances that led to the miscarriages of justice in those cases were complex and multifaceted. Those circumstances will almost inevitably be quite different from the circumstances of the case the jury must deal with. For example, the wrongful convictions in Morin and Sophonow were the result, in part, of a particular type of unreliable witness, jailhouse informants. To refer to specific cases by name simply risks introducing irrelevant considerations and may draw counsel into giving evidence;
  4. In eyewitness identification cases it is not improper for defence counsel to refer to the fact that there have been wrongful convictions because of mistaken eyewitness evidence.Footnote 147

Many of the decisions discussed above involved cases heard before a judge and jury. Are there any specific issues that arise in matters that are dealt with in judge-alone trials? In R. v. Bigsky,Footnote 148 Justice Georgina Jackson of the Saskatchewan Court of Appeal conducted an extensive review of cases from across the country to develop a series of guidelines and factors that should be considered by judges sitting without a jury in cases involving eyewitness identification:

  1. whether the trial judge can be taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability;
  2. the extent to which the trial judge has reviewed the evidence with such an instruction in mind;
  3. the extent to which proof of the Crown’s case depends on the eyewitness’s testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene;
  4. the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and
  5. whether there is other evidence which may tend to make the evidence unreliable, i.e., the witness’s evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony.Footnote 149

She then stated:

In those judge-alone cases where a conviction based on eyewitness testimony has been upheld, the court of appeal found that the trial judge has instructed himself or herself properly on the appropriate standard of proof and the frailties of eyewitness testimony and applied those standards in the analysis; the eyewitness has either known the accused; or the evidence formed a part only of evidence of guilt; and there has been no suggestion that the eyewitness identification has been contaminated or weakened by some sighting after the incident. It is also relevant, in the appellate context, whether the accused testified. Where courts of appeal have found error, the reasons have been insufficient, the eyewitness identification rests on a “fleeting glance” or some improper procedure took place after the incident which may have inappropriately strengthened the witness’s testimony.Footnote 150

There is a significant difference in cases in which a witness is asked to identify a stranger never seen before the crime, and cases in which a witness recognizes a person previously known to them. While caution must still be taken to ensure that the evidence is sufficient to prove identity, ‘recognition evidence’ is generally considered to be more reliable and carry more weight than identification evidence.Footnote 151

V. Status of Recommendations

In the preparation of this update, nine police services and agencies from across the countryFootnote 152 were surveyed to gauge their implementation of the recommendations in the 2005 Report. The following questions were posed:

  1. How are photo-pack viewings conducted (sequentially or otherwise);
  2. How are the comments and statements of witnesses captured and/or recorded;
  3. If an officer conducts the photo-pack viewing or other lineup, are efforts made to ensure independence of the investigator from the current investigation.

There was virtual unanimity in the responses received. All police services agencies confirm that photo-pack viewings are conducted sequentially and never as a package. All agencies confirm that at the very least, all comments and statements made by a witness are recorded in writing, with preference given to recording by video or audio, if possible.

Finally, all but one of the services mandated that an officer, independent of the investigation and unaware of the identity of the suspect, conduct the photo-pack viewing.Footnote 153All of these responses are in accordance with the original recommendations in the 2005 Report.

Furthermore, since the 2005 Report, presentations on the frailties of eyewitness identification have been given to various stakeholders in the justice system, in particular to prosecutors across the country. Among them: Unlocking Innocence: International Conference on Wrongful Conviction (October 2005, Winnipeg, Manitoba); Understanding Wrongful Convictions (November 2005, Saint John, New Brunswick); B.C. Crown Counsel Conference, (May 2006, Whistler, British Columbia); Western Canadian Robbery Investigators Conference (May 2008, Winnipeg, Manitoba); 7th Annual Crown Defence Conference (September 2009, Winnipeg, Manitoba); PPSC-RCMP presentation to prosecutors and police (October 2009, Iqaluit, Nunavut); PPSC-RCMP presentation to prosecutors and police (April 2010, Yellowknife, Northwest Territories); B.C. Continuing Legal Education Society workshop “Preventing Wrongful Convictions” (October 2010, Vancouver, B.C.); Newfoundland and Labrador Annual General Meeting of Prosecutors (October 2010, St. John’s, Newfoundland and Labrador); Session intensive de formation des substituts du procureur general du Québec (April 2006, Québec); and PPSC-RCMP presentation to prosecutors and police (October 2010, Whitehorse, Yukon).

The 2005 Report’s recommendations were designed to preserve the integrity of identification evidence, reinforce the notion that identification-based prosecutions can be undertaken with confidence and maintain balance and fairness in the justice system.

Three general concerns were raised about the recommendations:

  1. Failure to gauge the witness’s certainty of identification;
  2. Recording of comments by audio or videotaping; and
  3. Use of expert evidence on the frailties of eyewitness identification.

1. Certainty of Identification

Professor Christopher Sherrin noted that no recommendation was made about ascertaining and recording the witness’s level of confidence in the identification, arguing that it may be “one of the most important pieces of information to be gleaned from the identification procedure.”Footnote 154 He does note that the “relationship between confidence and accuracy is still uncertain”Footnote 155 but that there is an important correlation between “accuracy and the witness’s confidence level at the time of initial identification, not at the time of trial. If jurors are going to place such weight in confidence, they need to know its level at the most relevant period of time.”Footnote 156 The Subcommittee does not believe the recommendation should be amended as suggested by Sherrin.

The 2005 Report outlined these best practices:

1(b) 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;

1(d) All of the witness’s comments and statements made during the lineup or photospread viewing should be recorded verbatim;

2(g) 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;

4 Workshops on proper interviewing should be incorporated in regular and ongoing training sessions for police and prosecutors.

The Report recommended that all comments made by the witness be recorded in their entirety. This is mandatory for the identification to have any merit. Implicit in this recommendation is that the witness would be interviewed by the police as part of the investigation. The witness would be told the reasons for their attendance, that the perpetrator may or may not be present, that they need not make an identification and that everything they say would be recorded. All of that information would be part of the interview process. Each interview with each potential witness will be different and conducted differently depending on the nature of the charge, level of sophistication and circumstances of the witness’s involvement. A recommendation was not made as to how a specific interview should be conducted.

Secondly, the confidence level of an eyewitness, even at the early stage of the process, does not necessarily correlate with accuracy. The tragic case of R. v. HanemaayerFootnote 157 is illustrative of this point.

On September 29, 1987, at about 5:00 a.m., a man broke into a residence in Scarborough and went to the bedroom of the owner’s 15-year-old daughter. He jumped on her back, put his hand over her mouth, threatened her, and told her that he had a knife. Fortunately, the homeowner was awakened by the noise in her daughter’s room. The homeowner told police that she stared at the intruder for forty seconds to a minute and could identify him again. The homeowner provided a description of the intruder. She testified the intruder stood inches from her and that she studied his face very closely. She believed that she was particularly adept at remembering faces because of her work as a teacher. She decided that the perpetrator must have been keeping watch on the house and likely was working on construction in the area. She telephoned one of the companies working in the area. She provided her description to a woman in the personnel department and the woman gave her the accused’s name as someone who fit the description. Two months after the break-in, the police showed the homeowner a photo line-up and she picked out Mr. Hanemaayer’s photograph. He was arrested on December 18, 1987. Mr. Hanemaayer gave a statement in which he denied knowing anything of the crime.

The victim and her mother testified on the first day of Mr. Hanemaayer’s trial. On the second day of the trial, after the homeowner had completed her testimony, Mr. Hanemaayer changed his plea to guilty. In short, he lost his nerve. He found the homeowner to be a very convincing witness and he could tell that his lawyer was not making any headway in convincing the judge otherwise. He was sentenced to two years less one day imprisonment in accordance with a joint submission.

On October 17, 2005, Paul Bernardo’s lawyer sent an e-mail to a police officer with the Toronto Police Sex Crimes Unit listing 18 sexual assaults and other offences that he believed had not been solved. One of the crimes was the break-in to which Mr. Hanemaayer had pleaded guilty. The police interviewed Bernardo in April 2006 and then conducted a further investigation. They were satisfied that Bernardo, not Mr. Hanemaayer, committed the crime. At the time, Bernardo lived two blocks from the victim’s home. He, of course, was the so-called “Scarborough Rapist.” In the course of the re-investigation, the police interviewed Mr. Hanemaayer and the homeowner. He reaffirmed his innocence, but the homeowner told the investigators that she had been sure at the time that the perpetrator was not Bernardo and remains convinced to this day that she identified the right person.

In admitting the fresh evidence, allowing Mr. Hanemaayer’s guilty plea to be withdrawn and then entering an acquittal, Mr. Justice Rosenberg stated:

I wish to make a few comments about the identification evidence in this case. We now know that the homeowner was mistaken. No fault can be attributed to her. She honestly believed that she had identified the right person. What happened in this case is consistent with much of what is known about mistaken identification evidence and, in particular, that honest but mistaken witnesses make convincing witnesses. Even the appellant, who knew he was innocent, was convinced that the trier of fact would believe her. The research shows, however, that there is a very weak relationship between the witness’ confidence level and the accuracy of the identification. The confidence level of the witness can have a “powerful effect on jurors”: see Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) at 28; see also R. v. Hibbert (2002), 163 C.C.C. (3d) 129 (S.C.C.), at 148 (emphasis added)Footnote 158

2. Audio or Videotaping the Witness’s Comments

Recommendation 1(d) of the 2005 Report stated:

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.

Some have suggested that audio- or videotaping should be mandatory in all cases where lineups are conducted.

However, as previously stated, many of the recommendations were directed at all Canadian police agencies, large and small, urban and rural, to provide best practice guidelines for safeguarding the identification process. The Report recognized as well that there will be circumstances when the best practice directives may not be feasible to follow. The ultimate goal was that as police agencies become more familiar with the recommendations, coupled with appropriate training and suitable technology, all interviews could be recorded by video, if feasible. Cost is not the only issue. Access to equipment, staff and locale are also valid considerations. One cannot expect an interview with a witness occurring in a remote northern setting to be conducted in the same fashion as one held in a large metropolitan police service’s dedicated video room. There was a need to be flexible if circumstances were such that full compliance could not be achieved.

In light of these considerations, the Subcommittee therefore believes that recommendation 1(d) should be maintained and not altered.

3. Expert Evidence

Recommendation 3 Stated:

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.

This recommendation was made in accordance with the prevailing law in Canada on the use of expert witnesses. Recommendation 3 Should be maintained and not altered.

Professor Sherrin argues that the standard views that triers of fact are already aware of the factors relevant to the reliability of eyewitness evidence and otherwise can be directed by the trial judge is placed in doubt by social science research.Footnote 159 General instructions on the frailties of eyewitness identifications can have the opposite effect of inducing skepticism towards such testimony. While this will result in the acceptance of fewer inaccurate identifications, it will be at the cost of the rejection of accurate ones. He further states that research has shown that expert evidence may lead triers of fact to adopt a more “nuanced approach.”Footnote 160 He does acknowledge, however, that Canadian jury instructions may be more effective then the American versions.

On the other hand, Professor Steusser believes that:

[O]ur existing trial safeguards are sufficient to caution jurors about eyewitness identification. Call me naive, but I believe that effective cross-examination, strong submissions and thorough jury instructions are the best means to prevent wrongful convictions…Canadian judges instruct the jury on the applicable law and go further to apply the law to the evidence. The judges carefully review the evidence of the eyewitnesses. A perfect example of such a charge to the jury is found in R. v. McIntosh. The charge in that case was extremely detailed and the concerns about eyewitness identification were applied to the specific circumstances as found in that case. In my view, these specific instructions are much clearer and stronger for the jury.Footnote 161

He suggests the model jury chargeFootnote 162 developed by the Canadian Judicial Council should be followed by judges:

[1] Identification is an important issue in this case. The case against (NAME OF ACCUSED) (or, the persons charged) depends entirely, or to a large extent, on eyewitness testimony.

[2] You must be very careful about relying on eyewitness testimony to find (NAME OF ACCUSED) (or, anyone) guilty of any criminal offence (or, the offence charged). There have been cases where persons have been wrongfully convicted because eyewitnesses made mistakes. It is quite possible for an honest witness to make a mistake in identification. Even a number of witnesses can be honestly mistaken about identification.

[3] You may wish to consider several factors that relate specifically to the eyewitness and his/her identification of (NAME OF ACCUSED) as the person who committed the offence charged:

(The circumstances in which the witness made his/her observations)

Did the witness know the person before s/he saw him/her at the time?
Had the witness seen the person on a previous occasion?
How long did the witness watch the person s/he says is the person on trial?
How good or bad was the visibility?
Was there anything that prevented or hindered a clear view?
How far apart were the witness and the person whom s/he saw?
How good was the lighting?
Did anything distract the witness’s attention at the time s/he made the observations?

(Review relevant evidence about circumstances)

(The description given by the witness after s/he made the observations)

How specific was the description?
Was the description close to the way (NAME OF ACCUSED) actually looked at the time?
Did the witness give another description of this person?
Was the other description similar to or different from the first?
How certain was the witness about the other description?

(Review description provided by witness)

(The circumstances of the witness’s identification of (NAME OF ACCUSED) as the person whom s/he saw)

How long was it between the observation and identification?
Did anybody show (NAME OF ACCUSED)’s picture to the witness to assist in the identification?
Were photographs of other people shown at the same time?
Was anyone else present when the witness made the identification?
What did the witness say when s/he identified ((NAME OF ACCUSED))?
Did the witness ever fail to identify (NAME OF ACCUSED) as the person whom s/he saw?
Has the witness ever changed his/her mind about the identification?
Has the witness ever expressed uncertainty about or questioned his/her identification?
Is the identification the witness’s own recollection of his/her observations or something put together from pictures shown or information received from a number of other sources?

(Review relevant evidence about circumstances of identification)

[4] Remember, the Crown must prove beyond a reasonable doubt that it was (NAME OF ACCUSED) who committed the offence charged. Consider the evidence of the identification witness along with the other evidence you have seen and heard in deciding that question.Footnote 163

This instruction, Stuesser says, “…is a far more detailed and ‘ specific’ examination than an American judge would ever undertake.”Footnote 164

In the Sophonow Inquiry Report, Commissioner Cory recommended that judges favourably consider and readily admit properly qualified expert evidence pertaining to eyewitness identification. In his opinion, “the testimony of an expert in this field would be helpful to the triers of fact and assist in providing a fair trial.”Footnote 165 Professor Steusser argues that this threshold of admissibility is too low. “The admissibility of expert testimony requires that it be necessary…Mere ‘relevance’ or ‘helpfulness’ is not enough.”Footnote 166

The National Criminal Subsection of the Canadian Bar Association also supports the conclusion that expert evidence on the frailties of eyewitness identification is unnecessary as it is not “…in accordance with the Supreme Court of Canada ruling in R. v. Mohan and the use of expert evidence at trial. A proper charge by the trial judge about such frailties would be sufficient to address any concerns.”Footnote 167

There are two recent judgments from Manitoba that should be considered in this regard.

In R. v. Henderson,Footnote 168 the accused was charged with first degree murder in the shooting death of a victim at a house party. The prosecution’s case rested almost entirely on eyewitness evidence on the issue of the identification of the accused as the shooter. Photo pack line-ups were used with the eyewitnesses. After a motion by the accused to exclude the eyewitness testimony was denied, a second motion was made seeking permission to call expert testimony on the issue of eyewitness identification. The Crown conceded the qualifications of the expert but was opposed to the calling of this witness. The issue for the Court was whether the proposed expert testimony met the requirements in law.

Mr. Justice Murray Sinclair of the Manitoba Court of Queen’s Bench, noting that no reported decision was brought to his attention in which evidence as proposed to be called had been permitted before a jury,Footnote 169 conducted an extensive review of jurisprudence, legal commentary and reports of inquiries, and made the following observations:

  1. Expert evidence in respect of eyewitness identification cannot be called for the purpose of impeaching or supporting the credibility of an eyewitness;
  2. Courts have been reluctant to admit expert evidence on eyewitness identification where the proposed testimony merely reminds jurors of what they already know;
  3. Where the proposed evidence can be shown to be necessary because it lies outside common experience, overcomes myth or provides scientifically sound counter-intuitive information, then the evidence is necessary and can be admitted for these limited purposes.

Justice Sinclair stated:

It seems ironic to me, however, given the inherent frailties of eyewitness evidence, and its acknowledged overwhelming impact on a jury, that an accused should be denied a valid tool on which to challenge it. This is all the more so, considering the fact that research has shown that erroneous eyewitness evidence has occurred more than it should in the criminal justice system and wrongful convictions have directly resulted.Footnote 170

Justice Sinclair held that there were some issues on which the expert opinion would not only benefit the jury but on which they definitely would require assistance:

He further held that the court needs to be clear as to the limits and extent to which experts may testify and must retain an overriding discretion on what the expert may be asked.

Justice Sinclair allowed the expert to testify, but restricted the extent of his testimony as follows:

  1. The expert may not comment on the correctness or reliability of any witness;
  2. The expert may not comment on any factors at play the night of the offence other then general comments and hypothetical questions;
  3. Any hypothetical question must be reduced to writing, first setting out particular facts or factors with each ending “what assistance can you provide to the jury as to what considerations should go into evaluating those factors?”;
  4. The expert will not be permitted to sit through the testimony of any eyewitness;
  5. The expert may not express an opinion on the validity, reliability, or bias of the actual photo pack line-up used in this case. The expert may be permitted to testify on the issues to be assessed in weighing photo pack line-up identifications generally.Footnote 172

Part of the difficulty of this ruling is that while some of the limited topics are potentially counter-intuitive and outside of common experience (such as unconscious transference), most are matters of general knowledge and therefore should be subject to a strong jury instruction only.Footnote 173

One week later, on April 29, 2009, the Manitoba Court of Appeal released its decision in R. v. Woodard.Footnote 174

The first issue on this conviction appeal related to the trial judge’s refusal to admit defence expert evidence on the frailties of eyewitness identification. The accused, with two others, was originally charged with second-degree murder in the beating death of the victim. Nine witnesses who observed portions of the beating were called to testify. The versions were highly inconsistent respecting the number and descriptions of the attackers and how many actually participated. The accused and his co-accused also testified. The accused requested that an expert witness on eyewitness identification (the same witness as offered in Henderson) be permitted to offer an opinion on the inherent frailties of such testimony. He also sought to have the expert testify on counter-intuitive fallacies and myths associated with identification evidence.Footnote 175 It was conceded by the expert that he could not testify:

  1. as to the specific effects that certain environmental factors (lighting, sobriety etc.) played in this particular case;
  2. that the environmental factors influenced or failed to influence the memory or perception of any witness’s identification;
  3. as to whether or not any witness’s recall or identification is accurate.

The trial judge refused to admit the expert opinion. The accused was convicted of manslaughter.

Mr. Justice Richard Chartier, speaking on behalf of the Court of Appeal in dismissing the appeal, reviewed the prevailing law on experts and eyewitness identification, finding that the refusal to permit the expert to testify was justified, as the evidence to be offered was unnecessary and a superfluity:

The necessity criterion relates to expert opinion evidence that provides information likely to be outside the experience and knowledge of the trier of fact. Here, the purpose of the expert evidence, when stripped to its bare essence, is not to make the testimony of a particular witness clearer and more comprehensible to the trier of fact, but rather to remind the jury of the many frailties of eyewitness identification.Footnote 176

Mr. Justice Chartier found that the proposed testimony could only ‘red-flag’ general concerns relating to the frailties of eyewitness identification. “Educating the jury on the frailties of eyewitness identification is generally best left with the trial judge through strong jury instructions…‘judges can remind just as well as experts’.”Footnote 177

It would therefore appear that in light of the decision of the Manitoba Court of Appeal, the influence of the Henderson ruling will be short-lived. The issue is still open, however, if in an exceptional case the necessity criterion for admitting expert evidence can be met and a limited admission of this type of evidence may occur.

Professor Steusser also suggests that

[T]he expert studies on memory and eyewitness identification be used to improve our identification gathering practices--outside of the courtroom…they…provide useful studies to help the legal system fashion ‘best practices’ for eliciting eyewitness identifications by the police.Footnote 178

This suggestion is in keeping with Recommendation 5 of the 2005 Report that presentations on the perils of eyewitness misidentifications should be incorporated in regular and ongoing training sessions for police and prosecutors. It may be appropriate in this respect to amend this recommendation to include a specific reference to this type of expert study.

The revised recommendation should now read:

5. Presentations on the perils of eyewitness misidentifications, including presentations by experts in the field of memory and eyewitness identification, should be incorporated in regular and ongoing training sessions for police and prosecutors (emphasis added).

VI. Summary of Updated 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 photo-pack presentation. 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 photo-pack, and therefore the witness should not feel that they must make an identification.
    3. The suspect should not stand out in the lineup or photo-pack 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 photo-pack 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 photo-pack 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 also all the circumstances involved in obtaining it, e.g. the composition of the photo-pack.
    8. Be wary of prosecutions based on weak single-witness identifications. 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, including presentations by experts in the field of memory and eyewitness identification, should be incorporated in regular and ongoing training sessions for police and prosecutors.
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