Roderick Bagshaw
Mansfield College
Witnesses2000 - Lecture 4 - Eyewitness Identification
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1. Structure - Perception / comparison (recognition / subsequent identification) ... Support
2. The Problem -Reid v. R. [1990] 1 A.C. 363, 378, “the
danger in identification evidence is hidden.”
M. Lieppe, Wells
& Ostrom, “Crime Seriousness as a Determinant of Accuracy in Eyewitness
Identification” (1978) 63 J. of Applied Psychology 345; M. Lieppe, “The
Appraisal of Eyewitness Testimony”, in Ross, Read & Toglia (eds.), Adult
Eyewitness Testimony (Cambridge U.P., 1994); R.C.L. Lindsay, “Expectations
of eyewitness performance: Jurors’ verdicts do not follow from their beliefs”, also
in Ross, Read & Toglia.
Summary: Eyewitness evidence is less than
wholly reliable, jurors are prone to regard it as more reliable than it really
is and to be mistaken as to which factors are relevant to its likely accuracy.
3. A Solution? - R. v. Turnbull [1977] Q.B. 224
(cf. Departmental Committee on
Identification in Criminal Cases, H.C. Apr. 26 1976 (chair. Lord Devlin)
·
Withdrawal
of Cases Based on Weak Identification Evidence: Turnbull
“If the quality [of
the identification evidence] is good and remains good at the close of the
accused’s case, the danger of a mistaken identification is lessened; but the
poorer the quality, the greater the danger. In our judgment, when the quality
is good, as for example when the identification is made after a long period of
observation, or in satisfactory conditions by a relative, a neighbour, a close
friend, a workmate and the like, the jury can safely be left to assess the
value of the identifying evidence even though there is no other evidence to
support it; provided always, however, that an adequate warning has been given
about the special need for caution. … When, in the judgment of the trial judge,
the quality of the identifying evidence is poor, as for example, when it
depends on a fleeting glance or on a longer observation made in difficult
conditions, the situation is very different. The judge should then withdraw the
case from the jury and direct an acquittal unless there is other evidence which
goes to support the correctness of the identification.” (Daley [1994] 1 A.C. 117)
·
Turnbull
Direction on Identification Evidence
“First, whenever the
case against the accused depends wholly or substantially on the correctness of
one or more identifications of the accused which the defence alleges to be
mistaken, the judge should warn the jury of the special need for caution before
convicting the accused in reliance on the correctness of the identification or
identifications. In addition he should instruct them as to the reason for the
need for such a warning and should make some reference to the possibility that
a mistaken witness can be a convincing one and that a number of such witnesses
can be mistaken. Provided this is done in clear terms the judge need not use
any particular form of words.” “Secondly, the judge should direct the jury to
examine closely the circumstances in which the identification by each witness
came to be made.” [That will involve examining both the original sighting and
the subsequent identification. Reference should be made to any material
discrepancy between any description given to the police and the actual
appearance of the accused.] “Finally, he should remind the jury of any specific
weaknesses which had appeared in the identification evidence. Recognition may
be more reliable than identification of a stranger; but, even when the witness
is purporting to recognise someone he knows, the jury should be reminded that
mistakes in recognition of close friends and relatives are sometimes made.” “The trial judge should identify to the jury
the evidence which he adjudges is capable of supporting the evidence of
identification. If there is any evidence which the jury might think was
supporting when it did not have this quality, the judge should say so.”
· Problem Areas for the Turnbull Direction
a. Deliberate
Fabrication - R. v. Cape, Jackson
and Gardner [1996] 1 Cr.App.R 191, approved D. J. Birch on R. v. Courtnell
[1990] Crim.L.R. 115, 116, “If the
defence alleges, not mistake, but a frame-up, no useful purpose would be served
by giving the warning.”
b. Admitted Presence, Denied
Participation - R. v. Oakwell [1978] 1 W.L.R. 32; R. v. Thornton
[1995] 1 Cr.App.R. 578; R. v. Slater [1995] 1 Cr.App.R. 584.
4. Regulation of Subsequent Identification -
Police & Criminal Evidence Act 1984, s. 78 - Code D
Prosecution evidence excluded “if it appears to
the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence
would have such an adverse effect on the fairness of the proceedings that the
court ought not to admit it.” (s 78)
· General Approach to s. 78 Exclusion: R. v. Ryan [1992] Crim.L.R. 187 (C.A.).
·
Code
D and s. 78: R.
v. Popat [1998] 2 Cr.App.R. 208, 212, “At a trial,
the trial judge has to consider any question of compliance with the Code in
deciding the question of fairness under section 78.” [and] Code D will be
relevant in “assessing situations not expressly covered by it.”
· Directions on Code D Breaches if Not Excluded: R. v. Graham [1994] Crim.L.R. 212 (C.A.); R. v. Quinn [1995] 1 Cr.App.R. 480, 490 (C.A.); R. v. Allen [1995] Crim.L.R. 643 (C.A.).
· Situations outside Code D – e.g. informal identification, R v. Popat (No 2) [2000] 1 Cr App R 387
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