Guidance on answering the questions in the book: Chapter 09
- The risks of mistaken identification are well accepted. There are many factors which may affect the reliability of identification evidence. A witness who gives evidence identifying the accused may be honest and convincing, but may be wrong. See The Modern Law of Evidence (‘MLE’) 12th edn p 262-263.
- The risk of miscarriages of justice arising from mistaken identification can never be eliminated entirely, but the guidance given in R v Turnbull goes a long way towards reducing the risk, as do robust pre-trial procedures which apply to how identification evidence is obtained during criminal investigation.
- The Turnbull guidance has two aspects. The first aspect concerns cases which rely on identification evidence which is of poor quality and is unsupported by any other evidence, the judge must withdraw the case from the jury. This might include a cases where there was only a ‘fleeting glance’ or where there was a longer observation but in difficult circumstances. See MLE 12th edn at pp 270-271. Where the evidence is of good quality (see MLE 12th edn p 269) or is supported by other evidence, it may safely go to the jury. The second aspect concerns the direction which the jury must receive where the case depends wholly or substantially on the correctness of identification evidence. See MLE 12th edn pp 264-265.
- A crucial part of the direction is that the judge must warn the jury of the special need for caution, explaining the reason for the need for caution, ie that a mistaken witness can be convincing and a number of such witnesses can all be mistaken). See MLE 12th edn at p259.
- The judge must also direct the jury to examine closely the circumstances in which the identifying witness observed the perpetrator. For example, the light, the distance, the duration of the observation, any obstructions during the observation, whether the witness had seen the person he identified before, how long between the observation and the identification, any breaches of pre-trial procedure (for example, breaches of the Police and Criminal Evidence Act 1984, Code D), and any other specific weaknesses. See MLE 12th edn at pp266.
- A Turnbull warning should also be given in recognition cases, i.e. cases where the witness recognises the perpetrator as someone he knew (see R v Beckford). See MLE 12th edn at pp 267-269.
- Similar directions are given in the United States (Telfaire instructions). However, empirical research indicates that Telfaire instructions are of dubious efficacy. See the analysis of Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (1995).
- A factor which may affect the accuracy and reliability of identifications is the nature of human memory. There have been a number of scientific findings on human memory some of which are general common sense, such as the fact that memory deteriorates with time, so that the longer the time between the observation of the perpetrator and the identification, the greater the risk that memory will weaken and the identification will be less accurate and reliable. The Turnbull direction already draws attention to lapse of time. However, perhaps judicial guidance on other findings might be useful to jurors when deciding on the reliability of an identification, such as the finding that memories of experienced events are always incomplete or that memories typically contain only a few highly specific details. See Keane, The use at trial of scientific findings relating to human memory  Crim LR 19.
- Informal identifications by social networking sites carry significant risks because the identification may be prompted (see R v Alexander) or otherwise contaminated. The judge will need to direct the jury carefully on whether the witness already knew the name of the person he identified or had other information about that person and whether he was prompted. See MLE 12th edn at p276-277.
- Pre-trial procedures held in accordance with Code D of the Police and Criminal Evidence Act 1984 also help to reduce the risk of miscarriages of justice arising from mistaken visual identifications because they provide a good test of the witness’s accuracy in remembering the perpetrator and make positive identifications more reliable. Code D now covers identification by viewing films, photographs and images formally and informally. See MLE 12th edn at p276-277. This is to be welcomed because the use of social media is ubiquitous, and the number of informal visual identifications from by sites such as Facebook will increase. Procedural safeguards may lessen the risk of a miscarriage of justice where identifications from images on social networking sites are made informally.
- Voice identification evidence is more difficult than visual identification, so the risks of mistake are greater. R v Roberts. See MLE 12th edn 279.
- Voice identification evidence is admissible, but in R v Chenia it was held that the jury should not be asked to compare the accused’s voice to a recording of a voice alleged to be the accused without the assistance of an expert in phonetics. Although this is still the position in Northern Ireland (see R v O’Doherty), in England and Wales Chenia was superseded by R v Flynn which stated that there was no authority to support the position that a voice comparison exercise by the jury could only take place with expert assistance, and the assistance of ‘lay listeners’ was acceptable. The evidence could still be excluded though, if its prejudicial effect outweighed its probative value. See MLE 12the edn p 279.
- Given the difficulties with voice identification and the increased risk of mistaken identification, great care should be taken when considering whether to admit the evidence. The Turnbull Guidelines apply to voice identification when it comes to directing the jury and presumably apply also in respect of when to withdraw a case from the jury, where the evidence of voice identification is of poor quality.
- When it comes to deciding whether the evidence is admissible, it is submitted that it should be scrutinized carefully, considering factors listed in The Crown Court Compendium, Part 1, 15 -29 (see MLE 12the edn p 280-289). These are factors to be addressed in any direction to the jury, but they are relevant to admissibility too, because they bear on the probative value of the evidence.
- Although voice identification evidence is more hazardous than visual identification, pre-trial procedure is limited to minimal requirements stated in R v Flynn (see MLE 12th edn p 282). Code D does not apply, beyond simply permitting the police to hold aural identification procedure if they think it is appropriate. In R v Hersey, a dubious parade led to an identification. The Court of Appeal held that the judge was right to admit the evidence of identification and also right to exclude expert evidence casting doubt on it. Given the risks associated with identification evidence, the decision is questionable and the kind of live parade held was deemed unacceptable in a Home Office Circular (see below).
- The limited nature of pre-trial procedure increases the risk that dubious evidence of voice identification will be admitted. Although The Crown Court Compendium, Part 1, provides a list of considerations for directing juries, many of which are relevant to admissibility, robust pre-trial procedure is needed. Code D should be developed to cover voice identification. The recommendations for good practice contained in a Home Office Circular of 2003 should be considered for inclusion in Code D. One of its recommendations was prohibiting live voice parades (see parade in R v Hersey, which the Court of Appeal approved). See MLE 12the edn pp 281-282.