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Evidence Practice And Principles Visual Identification Evidence Notes

BCL Law Notes > Evidence II: Practice and Principles Notes

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Umbrella terms for lots of different types of evidence of identification, it is whereA witness points to a particular individual with certain features (e.g. appearance or way of speaking) and links them with involvement in a criminal offenceHigh risk of unreliability because the honest witness may be mistakenHistory has shown that many wrongful convictions have resulted even where the witness conscientiously believes and is convinced of their own evidence without a motive, due to human fallibility. Psychological and social science research shows that we all overestimate our ability to identify someone.

VISUAL IDENTIFICATIONWhere a witness testifies that they saw the accused in a particular place, or doing a particular actCautionary warning as opposed to corroboration warning is given in all situations where visual ID evidence is adducedCorroboration danger is not mentioned in these warnings.

People (DPP) v Mekonnen [2012] 2 ILRM 325
McKechnie JWhere the conviction of an accused is wholly or substantially dependent on evidence from visual identification:'human and legal experience has in a marked way alerted us to the risk of mistaken identity'The risk of mistaken identity on visual ID evidence exists even where:

The observation(s) appear adequate


The witness conscientiously strives for truth and accuracy


In cases of multiple witnesses even if they all possess the same determination.


witness is convinced of their identification beyond reasonable doubt. It was being argued that no conviction should ever be possible on mere visual identification evidence, but the court was saying that many convictions simply would not be brought to trial if this was a blanket rule because in many cases it is the only evidencehowever, due to the 'instability inherent in visual identification evidence' and the 'frailty of such evidence' they've had to come up w a way to tackle the risk of misidentify and miscarriages of justice


'judicial cautioning of juries matured over time into an entrenched rule of law and is perceived as a flexible means of affording identification evidence a meaningful role in the prosecution of offences while at the same time minimising the risks of error.'
She notes also that the question of the admissibility of ID evidence has received little attention•

Admissibility of visual ID evidence not determined in a voir dire

Rather, the default position is admission but counsel may apply to the judge to have the evidence which has already been adduced, withdrawn.


These are necessary and v important
It is not very probative or useful for someone to point at an accused at trial and say yeah that's them, so pre-trial identification will usually take place

McGrathGeneral rule is that 'a witness will not be permitted to identify the accused in court unless his or her ability to make an identification has been tested by an ID parade or other form of pre-trial procedure.'

HeffernanThe prior identification (pre-trial) is admitted as substantive evidence of the accuracy of the present identification (in court)


The desirable, gold standard for ID evidence

People (DPP) v O'Reilly [1991] ILRM
O'flaherty JIdentity parade involves:

'Eight or nine people of similar age, height, appearance, dress and walk in life as the suspect'
Supervised by independent Garda that is not involved in the actual investigation (iii)
(iv)Full details of the description of those making up the parade are kept
Witness should not have opportunity to see the suspect in advance of holding the parade

Not exhaustive

The rationale for similarities is that anyone who has a distinctive feature may stand out and alert themselves to the accused which may be misleading
Rationale for the preservation of the details is so that they can be analysed and reviewed if necessary.
Always?No. gold standard butThere will be circumstances where it is not possible or practicable to hold an identification parade.If suspect is of singular appearance may not be possible to find 8/9 people who are relatively similar in appearanceSuspect may not agree to go on an ID parade or there can be attempts to frustrate it once it is assembledIf declines to agree they 'may have to live with the consequences'

There are informal ID parades which may be less favourable
BenefitsProvide a filter for both parties.If suspect is not picked out of the parade, very often prosecution may end there.If suspect is picked out, can reach an accommodation w the prosecution by pleading guilty.

If there is no other evidence the prosecution cannot really proceed
People (DPP) v McDermott [1991] 1 IR 359
Finlay CJWhere no ID parade is held:There must be added to the ordinary warning, 'a warning as to the difference in opportunity, control and credibility between an informal identification…and an ordinary controlled identification parade.'This is so even if the informal identification was organised so as to permit the picking out from a great no. of people.

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