R. v. Friesen, 2005 SKPC 68 (CanLII)
[8] In R. v. Burke, 1996 CanLII 229 (SCC), [1996] 105 CCC (3d) 205 (S.C.C.), Lamer C.J.C. made the following comments at pp. 224-5, regarding the potential pitfalls of identification evidence:
“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 proven 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’.” Regina v. Sutton 1969 CanLII 497 (ON CA), [1970] 3 CCC 152.”
[9] In R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 4 CCC 241 (Ont. C.A.) at p. 249, Laskin J.A. (as he then was) made the following observation about identification evidence:
‘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. . .”
See also R. v. Richards, [2002] O.J. No. 2830 (Ont. Sup. Court of Justice)
[10] The case of R. v. Hibbert (2002), 2002 SCC 39 (CanLII), 163 C.C.C. (3d) 129 ( SCC) bore some similarity to the present case and the difficulties encountered with identification. Justice Arbour, writing for the majority, discussed the frailty of in-court identification following a failure to identify from a photo lineup as well as the danger of allowing a witness to see a suspect under arrest or detained by the police:
“¶ 45 The evidence of identification was both direct and circumstantial. The concerns expressed by the appellant are addressed to the direct evidence and, in particular, to the alleged insufficiency of the charge with respect to the in‑court identifications.
¶ 46 As pointed out by the Court of Appeal, it is true that the trial judge addressed the frailties of the identification evidence. In the middle of a passage which highlighted several potential grounds for suspicion about the reliability of eyewitness identification, the trial judge said [2000 BCCA 144 (CanLII), 219 W.A.C. 281 at pp. 289‑90]: However, you must consider the possibility that Mrs. McLeod identified the accused in court from her memory of either the photograph in the line‑up or the television newscast instead of from her memory of the person she saw at 151 Campbell Street on October 24, 1993. You must also consider the same possibility in respect of Mrs. Baker's in court identification of the accused. I also remind you that both Mrs. McLeod and Mrs. Baker positively identified the accused for the first time when each was asked to identify him in the courtroom at the preliminary hearing and at the first trial and at this trial and the law provides that the identification of the accused for the first time in the courtroom after a failure to positively identify him from a photo line‑up is to be accorded little weight. (Emphasis added)
¶ 51 The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented. Most recently the Honourable Peter deC. Cory, acting as Commissioner in the Inquiry regarding Thomas Sophonow, made recommendations regarding the conduct of live and photo line‑ups, and [page148] called for stronger warnings to the jury than were issued in the present case (Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) ("Sophonow Inquiry"), at pp. 31‑34).
¶ 52 While it is unnecessary to consider these recommendations in detail, I share the concern expressed by the Commissioner and, in this particular case, I think it would have been prudent to emphasize for the benefit of the jury the very weak link between the confidence level of a witness and the accuracy of that witness (Sophonow Inquiry, at p. 28). Moreover, here it should also have been stressed that the impact of Mrs. McLeod having seen the appellant arrested by the police as her alleged assailant could not be undone. Nor could she be expected to divorce her previous recollection of her assailant from the mental image that she formed after having seen the appellant on television.”
[11] The Hibbert decision referred with approval to the recommendations of the former Mr. Justice Cory of the SCC in the Sophonow Inquiry regarding identification. Those recommendations regarding live and photo line-up identification are reproduced below, with emphasis added in italics:
“The Inquiry Regarding Thomas Sophonow
The Investigation, Prosecution and Consideration of Entitlement to Compensation
Recommendations
. . .
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 a 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.”
[12] I found an article in the Alan D. Gold Collection of Criminal Law Articles, ADGN/99‑1595, helpful in understanding the importance of sequential photo lineups and how they should be conducted. It is entitled: Useful Advice on Photo Line‑Ups October 4, 1999 "Research And Valid Photo‑Lineups: Recommendations From 130 Years Of Memory Research," by Larry Gist, J.D. and Curtis E. Wills, Ed.D., Reprinted in "Mouthpiece", vol. 12, no. 4, July/August 1999, New York State Association of Criminal Defence Lawyers from "The Voice" by permission of the Texas Association of Criminal Defense Lawyers.
. . .
“Sequential (One at a Time) Procedures
False identifications may be the result of the relative judgment (all at once) process. When this "one at a time" procedure is compared to simultaneous (all at once) procedures, the sequential procedure is superior. Trial scientists found that the traditional procedure (viewing all photos at once) permits the relative judgment process to reduce accuracy. In the sequential procedure, each photo is examined individually and the witness decides whether or not that person is the culprit, before viewing subsequent photos. This superior absolute judgment process increases accuracy.
. . .
Sequential (One at A Time) Presentations
In a sequential (one at a time) procedure, an eyewitness views the photos individually and makes a decision (that the photo is/is not the perpetrator) before viewing the next lineup photo. Compared to the usual simultaneous procedure, it is clear that the sequential procedure produces a lower rate of false identifications in perpetrator‑absent photo‑lineups. Therefore the fifth recommendation, if added, would be that the photo‑lineup would be sequentially rather than simultaneously (all at once) presented. . .”
[13] In a further article posted in the Alan D. Gold Collection of Criminal Law Articles, ADGN/RP‑196, entitled, Eyewitness Identification Evidence: Emerging Issues, by Justice Casey Hill of the Ontario Superior Court of Justice, dated December 2004, the validity and procedure for sequential line-ups were discussed:
“SEQUENTIAL LINE‑UPS
¶ 12 The traditional line‑up approach of police authorities has been to simultaneously show an eyewitness a suspect and foils or distractors. For example, an eyewitness might be asked to view a lay‑out of 12 photographs.
¶ 13 In sequential line‑up procedure, on the other hand, the witness is shown one photo at a time and has no idea how many images he or she will be shown where no positive identification is made.
¶ 14 Because of a witness' desire to make an identification and the natural belief that the person responsible for the crime will be in a photo array, eyewitnesses examining a simultaneous line‑up have been shown to engage in relative or comparative judgment strategies ‑ comparing the photos in pursuit of identification of the individual who looks most like the witness' imprinted memory. [See Note 11 below]
[14] Justice Hill, provided in a note the procedure taught in the Ontario Police College which calls for individual photographs being viewed one at a time and only once:
“Note 14: The Ontario Police College teaches the use of sequential photo line‑ups. See "Best Practice Recommendations For Eyewitness Procedures: New Ideas for the Oldest Way to Solve a Case", note 10 supra, at pp. 9‑11. The Inquiry Regarding Thomas Sophonow at note 9 supra recommended as to photo pack line‑ups that "The photo pack must be presented sequentially and not as a package". The National Institute of Justice, U.S. Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement 9 (1999) (C. "Conducting the Identification Procedure ‑ Sequential Photo Lineup") (online at http://www.ojp.usdoj.gov/nij/pubs‑sum/178240.htm) and the New Jersey Guidelines for Preparing and Conducting Photo and Live Lineup Identification (promulgated by N.J. Dept. of Public Law and Safety, Office of the Attorney General, April 18, 2001) are virtually identical with the latter document providing:
Sequential Photo Lineup: When presenting a sequential photo lineup, the lineup administrator or investigator should:
...
2. Provide the following additional viewing instructions to the witness:
a. Individual photographs will be viewed one at a time.
b. The photos are in random order.
c. Take as much time as needed in making a decision about each photo before moving to the next one.
d. All photos will be shown, even if an identification is made prior to viewing all photos; or the procedure will be stopped at the point of an identification (consistent with jurisdictional/departmental procedures).
3. Confirm that the witness understands the nature of the sequential procedure.
4. Present each photo to the witness separately, in a previously determined order, removing those previously shown.
5. Avoid saying anything to the witness that may influence the witness' selection.
6. If an identification is made, avoid reporting to the witness any information regarding the individual he or she has selected prior to obtaining the witness' statement of certainty.”
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