18: Visual Identification Evidence

Question 1

What are the safeguards for Visual Identification Evidence?

Answer 1

1. Code D = Designed to test W’s ability to identify suspect. Failure = MUST be taken into account by court + MAY result = exclusion.
2. At trial
   
   1. Turnbull guides
   2. Dock identifications

Question 2

Is a description of the culprit identification evidence?

Answer 2

NOT identification evidence

Question 3

If NO identification evidence, what happens?

Answer 3

Turnbull guidelines DON’T apply

Question 4

What happens if the accuracy of identification (opposed to honesty of accuser) is not an issue?

Answer 4

neither Turnbull guidelines nor Code D need to be considered.

Question 5

What is identification?

Answer 5

= issue when C questions W’s ability to recognise him.

Question 6

What is the general rule about a Turnball warning/ direction?

Answer 6

Gen rule: Turnbull warning should be given, in identification issues + alleged recognition.

If distance between D + W, a Turnball direction might be given.

Question 7

What is

DOCK IDENTIFICATION = ?

Answer 7

Identification of D for first time during course of trial.

Question 8

DOCK IDENTIFICATION

Indictment cases:

WHAT HAPPENS?

Answer 8

In cases on indictment pros wont invite W to identify D where not previously done identity parade, unless parade = unnecessary or impractical or exceptional circumstances.

Question 9

Does the court allow dock identification in indictment cases?

Answer 9

Judge norm prohibits dock identification on trial on indictment, but may be different for minor sum offences.

Where W dock identifies when not solicited = judge MAY have to warn jury against its weight.

Question 10

What happens if the

Qualification identification evid is good?

Answer 10

jury can be left to assess value of identification evid even if no other evid to support, provided adequate warning given about special need for caution.

Question 11

Does a breach of Code D PACE lead to exclusion?

Answer 11

CODE D PACE breach = not necessarily lead -) exclusion evid, but ESSENTIAL judge determines if alleged breach occurred + may have caused significant prejudice to D

MAY be without Voir Dire. If no prejudice from breach – no case to exclude evid.

If some prejudice -) determine under s78 if adverse effect requires evid to be excluded. Judge MUST give reasons to admit identification evid.

Where direction MAY be required = jury MUST be told “identification procedure enables D to put reliability of W identification to test + D lost this safeguard+ should take account of this.

Question 12

If the Qualification identification evid is bad, judge MUST

Answer 12

withdraw case from jury + direct acquittal UNLESS other evid supports correctness of identification.

Judge MUST identify evid capable of supporting evid of identification.

Question 13

Turnbull direction NOT necessary unless:

Answer 13

pros case depends “wholly or substantially on visual identification” + no partic words necessary.

Question 14

What MUST be said to the jury where there is a turnball direction?

What happens if there is a failure?

Answer 14

Jury MUST be warned direction based on past experience. FAILURE = norm conviction quashed as unsafe. With co-D, failure may render unsafe conviction of another.

Question 15

Where do the Turnball guidelines not apply?

Answer 15

Guidelines not applicable to cases involving motor vehicles. Robust Turball direction MAY be required where pros adduce hearsay of identification.

Question 16

What is the turnball guidelines for?

Answer 16

for disputed identification evidence

Applicant in sum/indictable offences + voice identification + voice recognition.

Question 17

What are the steps in the Turnball guidelines?

Answer 17

FIRST = Where case against D wholly/substantially on correctness of identity, judge should warn jury of special need for caution before convicting. Instruct them as to:

1. The reason for need of warning; and
2. Reference to possibility W is mistaken + is convincing.

SECOND = judge should direct jury to examine circumstance identification was made, e.g. distance, light etc. If pros think material discrepancy = should supply D with particulars of description. If D asks for particulars, pros should supply it.

THIRD = Judge remind jury of specific weaknesses in identification evidence. Recognition may be more reliable than identification of stranger.

Question 18

Turball direction MAY be required where

Answer 18

pros adduce hearsay of identification.

Question 19

Turnbull direction MAY be necessary if

Answer 19

D’s presence @ scene admitted.

Question 20

For a turnball guideline, what is the evidence?

Answer 20

Evidence = Judge MUST identify evid capable of supporting identification + warn jury against reliance.

Question 21

Turnball guidelines:

Where identification evid = such poor quality he would not have left case to jury in absence supporting evid =

Answer 21

no obligation to warn jury they should NOT convict on evidence of identification alone, should they reject supporting evidence – direction may be appropriate, but not required.

Question 22

What is

Mutually supportive identifications?

and what is the principle?

Answer 22

Identification of D by 2 different Ws carries more weight but only if identifications are “of a quality that a jury can be safely left to assess”. Jury MUST consider quality of each W’s identification evid separately + where evid identifying D is compelling = CANNOT rescue weak identification of ANOTHER offence unless clear each committed by same person

Question 23

What is

Self-incrimination

and what is the principle?

Answer 23

disputed identification evid MAY be supported by admissible confession. Before lies can support identification, it must have been shown to be:

Question 24

What is the TEST for

self-incrimination?

Answer 24

TEST: deliberate + material.

Court/Judge MUST be able to discount any innocent motive + proved to be lies other than identification they are to support.

Question 25

When may the court/jury draw inference as appear proper?

Answer 25

D’s silence to:

1. Mention facts when questioned/ charged later relied on
2. Account for objects in possession or substances or marks on body or clothing
3. Account for presence at a particular place; or
4. Testify at his trial

Question 26

Does D’s silence constitute evidence of guilt?

Answer 26

NOT constitute evidence of guilty + not be seen as substitute for satisfactory identification evid, absence testimony MAY enable court/jury to infer pros evid = correct + D has no answer to it.

Question 27

What happens where D is silent?

What is the impact of the quality of the witness?

Answer 27

Quality of W = Police are more reliable Ws than ordinary members of public. Judge MUST direct jury as to greater reliability of police identification.

Question 28

How to stop the trial based on inadequate identification?

Answer 28

Turnball guidelines require judge direct acquittal where identification evid is both “deficient + unsupported” by sufficient alternative evidence.