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This humorous example from the movie Superbad relating to the liquor store robbery and assault on McLuvin effectively highlights the need for proper police investigation and in particular, the necessity on the part of the police to obtain the fullest, most accurate and most comprehensive description of the person alleged to have committed the offence.

Superbad may be funny, but mistaken identification in criminal law is no laughing matter.

injustice and mistaken identification

To begin with, it is important to recognize that many cases of wrongful conviction have occurred as a result of mis-identification of the alleged criminal and the fact is, it is very likely that most wrongful convictions are never uncovered.   For those that are discovered, it often takes many years -- sometimes decades -- of work by justice advocates to right the wrong. With this in mind, imagine the number of wrongful conviction cases for less serious crimes that have not attracted the attention of organizations such as The Innocence Project.  Indeed, the likelihood of a convict seeking redress for a wrongful conviction diminishes once the sentence is served; leaving our justice system ignorant and the wrongly convicted without faith.

In R. v. Atfield, [1983] A.J. No. 870 the Alberta Court of Appeal powerfully commented on the dangers of mistaken eyewitness identification. 

The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases, where the criminal act is not contested and the identity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. As is said in Turnbull, the jury (or the judge sitting alone) must be satisfied of both the honesty of the witness and the correctness of the identification. Honesty is determined by the jury (or judge sitting alone) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavourable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof and a conviction so founded is unsatisfactory and unsafe and will be set aside.

A growing concern on the part of many criminal defence lawyers in Calgary and elsewhere revolves around an obvious aversion to proper identification by justice system participants: police, witnesses, Crown, judges and even defence counsel.  Notwithstanding strong jurisprudence about the need to properly investigate crime and adjudicate identification issues, it is not unusual for police to ignore simple identification procedures, for Prosecutors to press questionable or even bad identification cases, for witnesses to point the finger and for judges to convict.  I recently defended a case where a man was convicted after 26 minutes of lost continuity in a local community, based solely on wearing bluejeans, a grey hoodie and a black hat.  At the time of the writing of this post, that man is in jail awaiting his appeal.

the identification defence

Properly defending a client on the basis of an identification defence requires a full appreciation of the evidence and the ability to vigorously cross-examine and hold accountable those purporting to identify the accused.  Eyewitness identification is only one type of identification. Identification can be established by other methods: photos, video, fingerprints, biological material (DNA). Where DNA is a kind of scientific identification, the same cannot necessarily be said for fingerprint evidence (which is far less scientific).  Even where science purports to make an identification, it is important to remember that it is not infallible and may not explain why a mark (such as a fingerprint or hair follicle containing DNA) was left behind. 

As aforementioned, eyewitness identification is often corrupted by long recognized frailties.  In Atfield supra, the Alberta Court of Appeal clearly stated:

It is important that investigating police should obtain from each identification witness, as soon as possible after the alleged observation, the fullest description of the person observed, which can be cross-checked with the descriptions given by other witnesses, and with the actual appearance of the person suspected, and with the descriptions given by the witnesses in court. The witnesses should be interviewed independently of each other, if at all possible before they have had the opportunity of communicating, and always without suggestion or assistance. Meticulous notes should be taken of the descriptions obtained. This was not done in the present case.

Despite this instruction, so many investigations are based on less or nothing. Similarly, there are too many prosecutions advanced on less or nothing. Worse, there are occasional convictions based on less or nothing.  By way of example, I routinely read disclosure  and defend cases that contain almost no meaningful cross-reference descriptors between the earliest description of the alleged perpetrator and the accused.

"That is the man" is not enough

I attend court on a quotidian basis and watch Crown's rest identification on a witness simply pointing at an accused (who is often guarded by Police in the "accused dock").  In R. v. Spatola, the Ontario Court of Appeal recognized that mistaken identification can occur even where witnesses know each other. The Supreme Court of Canada has held in cases such as R. v. Hibbert and R. v. Burke that "dock/in-court identification" has almost a total absence of value. Despite this, there are still too many cases where identification is advanced on evidence that is little or no better than "that is the man".   He "look like a man" is not enough.

Interestingly, the police officer in this MAD TV episode is really trying to his job.   Defence lawyers , Crowns and judges must do there's. Identification can be so powerful that it bedazzles even the most savvy criminal law practitioner.  Accordingly, guarding against a natural bias to assume the identification is correct is important.

Every defence lawyer should carefully analyze disclosure to ensure that his/her client is properly identified. The defence should never simply accept the correctness of an identification (even where science is involved) and should always remember that there are a great many wrongfully convicted people who have lost time, money and a clean criminal record because there were falsely identified. Though there are no guarantees that even the best criminal defence lawyer can win a false identification case (or will even recognize one), the defence must always be diligent to ensure that everything is done to diminish the prospect of this occurring. 


david chow routinely defends identification cases

David Chow has won many hard fought cases on the basis of mistaken identification.  Most recently at the time of writing this page: R. v. B.A., R. v. L.B.C.and R. v. A.H.J.  For a free consultation with a Calgary criminal lawyer, DUI lawyer and drug lawyer who can win even scientific identification cases (see A.H.J. and and R. v. C.E.P.) call 403.452.8018. David Chow has successfully defended many mistaken identification clients in Calgary and throughout Alberta.

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