Issues with Identification
Identification is often a critical issue in criminal cases. Eyewitness evidence is often available, but is prone to weakness. Witnesses may make mistakes in sight, perception, observation and recollection. Witnesses may become wrongly convinced that the person accused is the person who has committed the offence.
There are particular risks with identification where the witnesses have first been identified by the accused from photographs provided by or from a lineup arranged by the authorities. Accordingly, at common law, the courts developed solutions, in particular the requirement that the judge warn the jury of the dangers of convicting solely on the basis of identification evidence.
The principle is not limited to cases where there is one witness only. Experience shows that there may be mistakes where more than two witnesses have identified the person concerned.
In considering issues of identification and recognition,
- prior familiarity if any,
- the visual conditions and circumstances and
- the timeline before subsequent identification
- and the duty to identify the person
would be considered.
If the witness knew the accused before the incident, the risks of a false identification are less.
Where the judge determines that the quality of identification evidence is poor, the judge may decide that there is insufficient case to put to the jury. He may, in effect, decide that no reasonable jury could determine beyond a reasonable doubt that the accused is the person identified. Where the issue is put to the jury, an appropriate caution or warning is required.
If a suspect is identified in a Garda station, in court or is pointed out by the Gardai, then there is an obvious risk of prejudice. The person might come to believe from the outset that a particular person is the person involved, consciously or subconsciously.
The circumstances of subsequent identification must be objectively reliable and fair. The preferable method is that the person be identified in an identification parade conducted at a Garda station. The suspect should stand in a line with about eight individuals of similar stature or height, hair colouring, age and dress. The parade should be organised by a member from Garda Siochana who is not involved in the investigation. The suspect must not be seen by the witness in advance.
The suspect need not participate. He is entitled to legal representation if he takes part and should be advised accordingly. The suspect or his legal representative may object to any aspect of fairness of the dentification procedure.
The accused may refuse to partake in the parade or he may attempt to sabotage or frustrate it. If a purported identification has already been made, an identity parade may serve to simply reinforce the existing identification without adding to it.
Less formal identification procedures may be acceptable. However, the fairness and proprietary of the procedures must be ensured.
Wen the judge warns the jury regarding the dangers of identification evidence, he or she should refer to the fairness of the particular procedure employed. Methods short of an identification parade may lack requisite fair procedures and carry an undue risk of error.
Identification in a court or Garda station may suggest criminality. The witness expectations may be critical. If the witness is told that the person concerned is in the identity parade, then they may be inclined to identify someone. They should be told that the relevant person may or may not be present.
The recognition of a person in a place normally reserved for the accused e.g. and flanked by prison officers is of limited probative value.
Where identification is likely to be an issue, the courts have said that the appropriate procedure is to hold an identification parade where practicable. If impracticable, the identification witness should be afforded some other opportunity to identify the accused in an appropriate identification procedure.
The requirement for a warning arises where the case is based wholly or substantially on the strength of identification evidence; no exact form of words is required. However, the warning should have certain key elements.
It is generally required e that there be a generic warning about the risks of convicting on identification evidence. Warnings should say that there have been occasions in the past where responsible witnesses whose honestly is not in question have made identifications which have subsequently been proved to be erroneous.
The warning should refer to the particular circumstances relating to identification. Relevant elements should be brought to the attention of the jury, e.g. in terms of the quality of the identification, distance, conditions, light, et cetera.
The warning should set out the identification procedure followed pre-trial. In particular, if there has been an identification parade, that should be set out with appropriate warnings. Where there has been no identification parade, a stronger special warning must be given as to the risks of other identification relative to an identification parade.
The court should have regard to the other circumstances relevant to identification and highlight evidence which is capable of reporting identification. The warning should be firmly rooted in the circumstances of the case.