Visual ID Evidence and Turnbull Guidance

Question 1

Turnbull Guidance - summary

Answer 1

Where a case depends wholly or substantially on the correctness of visual ID evidence and D disputes this

1. Judge will assess the quality of the ID evidence (via ADVOKATE) -
2. If the evidence is of good quality ==> Turnbull Direction should be given
3. If the evidence is of poor quality, judge will consider if there is other evidence supporting the ID -

• if there is ==> Turnbull Direction should be given
• if there is not ==> Judge must withdraw the case and give a not guilty verdict

Question 2

when should Turnbull direction be given and considered?

Answer 2

given when = the case depends ‘wholly or substantially’ on the correctness of the visual identification AND D disputes this

NOT given = if D admits they were present at the scene but disputes their role in the incident (because D’s ID is not the main issue)

Question 3

what are the contents of a Turnbull Direction? (5)

Answer 3

JUDGE SAYS TO JURY DURING SUMMING UP =

1. There is need for caution to avoid the risk of injustice before convicting the accused
2. a witness can be honest, convincing, or know D very well but still be wrong
3. multiple witnesses can be wrong
4. directs jury to examine the circumstances in which the ID by the witness came to be made
5. reminds jury of specific weaknesses undermining the ID evidence
6. directs jury to consider if there is other evidence to support the correctness of the identification + identify to the jury the evidence that is capable of supporting the ID evidence - examples:

• scientific evidence
• multiple IDs by different witnesses
• D’s bad character or prior convictions (if admissible)
• D’s silence in interview (if it is proper to draw adverse inferences)
• D’s admission at the scene/interview/in court

Question 4

when the case substantially rests on ID evidence, what does the judge consider in assessing the quality of the ID evidence?

Answer 4

ADVOKATE to assess quality of ID evidence:

• Amount of time under observation = how long did W see D (esp. their face)?
• Distance = what was the distance between W and D?
• Visibility = state of the light, fog, night time
• Obstruction = to W’s view, physical, distractions, people passing by
• Known or seen before = Had W seen D before, how many times, when
• Any reason to remember = any special reason for W to remember D?
• Time lapse between W seeing D and the ID procedure
• Errors or material discrepancies between the first description given by W and the actual appearance of D

Question 5

what does the judge do after assessing the quality of the ID evidence and finding the quality good?

Answer 5

give Turnbull warning to jury, but allow jury to assess the value, weight, and reliability of the ID evidence on their own

Question 6

what does the judge do after assessing the quality of the ID evidence and finding the quality poor?

Answer 6

judge should consider if there is other evidence to support the ID evidence -

• if yes = give Turnbull warning but let jury assess the value, weight, and reliability of the ID evidence
• if no = withdraw the case from jury and direct acquittal

Question 7

if the judge finds that the quality of the visual ID evidence is weak, what other evidence does it consider?

Answer 7

judge considers other evidence in support of the ID evidence, such as:

• scientific evidence (footwear, face mapping, telephone calls)
• multiple IDs by different witnesses
• D’s bad character and prior convictions if admissible
• D’s silence in interviews if it is proper to draw adverse inferences
• D’s admissions