UNRELIABLE EVIDENCE
IDENTIFICATION EVIDENCE
• Umbrella terms for lots of different types of evidence of identification, it is where
- A witness points to a particular individual with certain features (e.g. appearance or way
of speaking) and links them with involvement in a criminal offence
- High risk of unreliability because the honest witness may be mistaken
- History 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 IDENTIFICATION
- Where a witness testifies that they saw the accused in a particular place, or doing a
particular act
- Cautionary warning as opposed to corroboration warning is given in all situations where
visual ID evidence is adduced
- Corroboration danger is not mentioned in these warnings.
People (DPP) v Mekonnen [2012] 2 ILRM 325
McKechnie J
- Where 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:
(i) The observation(s) appear adequate
(ii) The witness conscientiously strives for truth and accuracy
(iii) In cases of multiple witnesses even if they all possess the same determination.
(iv) 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 evidence
- however, 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
Heffernan
• ‘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.
PRE-TRIAL IDENTIFICATION PROCEDURES.
• 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
McGrath
- General 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.’
Heffernan
- The prior identification (pre-trial) is admitted as substantive evidence of the accuracy of
the present identification (in court)
ID PARADES
• The desirable, gold standard for ID evidence
People (DPP) v O’Reilly [1991] ILRM
O’flaherty J
- Identity parade involves:
(i) ‘Eight or nine people of similar age, height, appearance, dress and walk in life
as the suspect’
(ii) Supervised by independent Garda that is not involved in the actual investigation
IDENTIFICATION EVIDENCE
• Umbrella terms for lots of different types of evidence of identification, it is where
- A witness points to a particular individual with certain features (e.g. appearance or way
of speaking) and links them with involvement in a criminal offence
- High risk of unreliability because the honest witness may be mistaken
- History 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 IDENTIFICATION
- Where a witness testifies that they saw the accused in a particular place, or doing a
particular act
- Cautionary warning as opposed to corroboration warning is given in all situations where
visual ID evidence is adduced
- Corroboration danger is not mentioned in these warnings.
People (DPP) v Mekonnen [2012] 2 ILRM 325
McKechnie J
- Where 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:
(i) The observation(s) appear adequate
(ii) The witness conscientiously strives for truth and accuracy
(iii) In cases of multiple witnesses even if they all possess the same determination.
(iv) 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 evidence
- however, 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
Heffernan
• ‘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.
PRE-TRIAL IDENTIFICATION PROCEDURES.
• 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
McGrath
- General 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.’
Heffernan
- The prior identification (pre-trial) is admitted as substantive evidence of the accuracy of
the present identification (in court)
ID PARADES
• The desirable, gold standard for ID evidence
People (DPP) v O’Reilly [1991] ILRM
O’flaherty J
- Identity parade involves:
(i) ‘Eight or nine people of similar age, height, appearance, dress and walk in life
as the suspect’
(ii) Supervised by independent Garda that is not involved in the actual investigation
