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Witness Identification Evidence Involves Concerns for Credibility and Reliability
Can An Identification By a Witness Be Wrong?
Understanding the Difficulties When Assessing Identification Evidence From the Testimony of a Witness
There are many scenes from various movies where a line-up of similar looking people, or a book of mugshots, is shown to a witness who is then asked to identify a perpetrator. Similar to the movie scenes, in real life, such a method of identification comes with weaknesses that may be flawed due to human frailty and mistakes by even a credible witness.
The Law
As it is possible that even a credible witness may be unreliable when identifying an accused person, a court must remain alert to the possibility and take great care to appreciate the possibility of mistake. This requirement was explained well by the Court of Appeal in the case of R. v. Olliffe, 2015 ONCA 242 where it was said:
[36] The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.
[37] The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33.
[38] Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
[39] The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.
Where appropriate, a good defence advocate will raise identification issues by challenging the reliability of testimony from even a credible witness. Of course, there is a potential downside to an effort to attack a credible witness whereas, it is possible, that the witness is both credible and reliable; and accordingly, attacking an identification by witness should be done cautiously lest the effort only serve to strengthen the identification rather than weaken the identification.
Summary Comment
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