Eyewitness Identification

The Admissibility of Expert Opinion Evidence

The Case For: Duckett

• In the Mohan analysis, the requirement for necessity means that the expert opinion must be information ”likely to be outside the experience and knowledge of a judge or jury.”

• Defence attempts to admit expert evidence about the unreliability of eyewitness id began in the 1970’s

R. v. Audy (1977) Ont. C.A.

“…the dangers inherent in identification evidence by reason of the grave shortcomings in the perception process, … all the possible sources of error already known to the law, such as the improper use of photographs, the unfair position in the line-up, communication, if any, among witnesses, length of period of observation, distance, lighting and so on, and he would likely add many of his own, perhaps, such as the significance of the events to the observer, stress, and so many more. In other words, he would merely be cautioning the jury on the dangers of identification evidence, a function, as I say, reserved traditionally to the trial judge.”

Held

• Properly excluded at trial on the basis that none of the evidence to be elicited was in an area where the jury required assistance

• Cdn courts, with few exceptions, have since continued to reject expert evidence regarding identification, consistently questioning the necessity of the evidence.

• Courts note the cost of the expert evidence to the trial process given the time and expense for such evidence and repeatedly state that many of the propositions offered by the expert can be or are incorporated into the judge’s charge.

• Courts in the US and Canada have commented on the unreliability of eyewitness id for many years.

Spatola [1970]

“ Errors of recognition have a long, documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous…The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction…”

• The jurisprudence is replete with examples of courts of appeal emphasizing the importance of careful charges to juries given the inherent frailties of eyewitness id. Yet despite decades of warnings, we know that juries continue to mistakenly act on such evidence.

Hibbert

• Modifications continue to be made to jury charges to strengthen warnings and incorporate additional research, given what we have learned.

• In R. v. Hibbert the SCC again noted that eyewitness in-court id is deceptively credible, because it is honest, sincere and can be dramatic. Further, that this evidence contributes a risk of wrongful conviction.

• The Sophonow findings are cited, as usual.

• The Court concludes by calling for stronger warnings on certain aspects of eyewitness evidence, yet the deficiencies in the jury charge were held not to amount to an error of law.

• Yet Cory’s recommendations in Sophonow are to allow such expert evidence, stating that juries would benefit from the information which is certainly not junk science. He concludes that the expert witness could explain the process of memory and its frailties, dispel myths – such as equating certainty with accuracy.

US: Georgia S.C.

• “…the admission of expert testimony regarding eyewitness identification is in the discretion of the trial court. Where eyewitness identification of the defendant is a key element of the State’s case and there is no substantial corroboration of that identification by other evidence, trial courts may not exclude expert testimony without expertly weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert eyewitness testimony is the only effective way to reveal any weakness in an eyewitness identification.”

Irony

• Such evidence is excluded in Canada as it characterized as a subject matter within the common knowledge of jurors yet, as Justice Casey Hill points out, if it is so well-known, why do we take such pains to include the information in a jury charge?

Conclusion

• We are wrong in our assumption that this information is intuitive.

• In 2004, a study in D.C. determined that a substantial number of potential jurors come to each trial with a basic misunderstanding about the way memory works, and about specific factors that can affect the reliability of identifications. They urge lawyers to confront courts with these findings to ensure the introduction of expert testimony on these issues.

Stuesser: Reply

• Accepts the inherent frailties of such evidence, and the persuasive impact of such testimony.

• Accepts that mistaken eyewitness id evidence has contributed to wrongful convictions.

• Accepts that there is a legitimate body of study on memory and eyewitness id. It is not junk science.

Does not accept

• That expert evidence is necessary for a fair trial.

• Argument: leave education of jurors to the trial process.

Relevance Questioned

• All an expert could do is state: “here are the reasons why it could be a good identification or a poor one.”

• Thus, the evidence is not going directly to a fact in issue, but rather as an interpretive aid to assist them in assessing the evidence.

Sheppard (2002) Man. Q.B. - example

• Facts – an African American sold cocaine to an undercover. Two months later, the undercover picked the accused’s photo out of a line-up.

• Issue: id.

Proposed Expert Evidence

• The different stages of memory, inter-racial id, unconscious cuing in lineup (assuming suspect is there), unconscious transfer (has seen the accused in different circumstances), the relationship between confidence and accuracy etc.

Intuitive

• Such evidence is intuitive, not outside normal experience of trier of fact.

Costs

• Mohan requires a cost-benefit analysis – e.g. consider possible prejudicial effect, inordinate consumption of time, possibility of misleading effect.

• Will the TOF overweigh the expert evidence? E.g. the proposed opinion in Sheppard: id evidence is “manifestly unreliable.”

Zurowski (Alta. C.A.)

• Are we simply “slaughtering the whole herd as the only workable precaution?”

• It can be reliable, and it is indispensable to the trial process.

Jury Charge

• Is to be prefferred to the expert evidence

• Saves time and expense

• Given by an impartial judicial officer

Existing Trial Safeguards

• Cross-examination

• Strong submissions of counsel

• Thorough jury instructions

Concession

• That studies in the US indicate these safeguards are not enough.

• Believes wrongful convictions based on id evidence are less prevalent here.

• Differences between Canada and US: the role of subpar counsel in US.

Role of Counsel

• Good cross on frailties, then raised in submissions, and ensuring proper jury instructions.

• Look at Milgaard, Sophonow and Morin (???) represented by leading defence counsel.

• Argument for strong and well-funded defence bar.

What to do with Wells’ research?

• “Estimator variables” are the factors surrounding the initial observation, and are beyond the control of the legal system.

• “System variables” can be controlled – ie. the process of police interviewing and lineups. The legal system can formulate “best practices.”

• Suggestion: as in the UK, legislate the practices, and make the practices admissible in evidence, along with a judicial discretion to exclude for failing to follow same.