We have discovered the hard way that confidence and accuracy are very different things in a criminal court. The most confident witness may be honestly mistaken or inaccurate or entirely wrong about his or her identification. Yet, we have learned, that same witness may stubbornly cling to their belief in the accuracy of their identification, despite its inaccuracies.
Defence lawyers often challenge vigorously the reliability of identification witnesses. They ask questions concerning the witness’s eyesight, strength of eyeglasses, ability to observe, consumption of alcohol or drugs, reliability of memory, accuracy of judgment or distance, height, weight, colour of hair, eyes, skin, clothing and length of time of observation.
They question the eyewitness about familiarity with the person identified or question about obstructions of view, disguises and visibility impediments. They question about previous inconsistent statements or descriptions, and, they ask about facial features or peculiarities of the person they claim they viewed.
There is no safe way to eradicate false eyewitness identification. It will continue to be vigourously challenged in Canadian courts. False eyewitness identification will probably continue to plague our system. The best that can be offered is that with scrutiny and challenge the number of mistakes will be lessened.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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