Identification evidence

Visual identification evidence

In order to ensure that identification evidence is not incorrectly interpreted by a jury, the courts are obliged to give each jury a special warning about the dangers of accepting visual identification evidence. This warning is not a corroboration warning but it must:

• State that honest witnesses with good observation opportunities have often made incorrect identifications, even at an identification parade.
• Carefully examine the identification evidence in the light of all the circumstances.
• Indicate the need for particular caution.
• Point out that the jury must be satisfied beyond all reasonable doubt that the identification was correct.

Photographs

Gardaí often show photographs of suspects to witnesses at the early stages of an investigation. It is best practice by the Gardaí to firstly obtain a detailed description from the witness prior to any photographs been shown. This process gives an indication as to the power of the witness’s memory of the offender before being shown photographs. The witness should also be shown photographs of many possible suspects.

When a suspect has been identified by a witness using photographs and it is proposed to put this evidence to the jury, the defence counsel may raise the issue of the use of the photograph as evidence with the judge, in the absence of the jury. If the photograph shown to the witness came from Garda files, the jury would be aware that the suspect had been photographed by the Gardaí on a previous occasion and this could prejudice the jury. It is then a matter for the judge to decide whether or not this evidence should be put to the jury.

Photofits and identikits

While photofits and identikits are used by the Gardaí in criminal investigations, their use is more to assist them in trying to identify potential suspects than for use in a criminal trial. The fact that the photofit and identikit is unlike a photograph or video, which is real evidence, means that little weight would be attached to their use as a means of identification evidence in a court of law. Perhaps the best way to describe them is as an aid to a criminal investigation.

Identification parades

If the Gardaí have already identified a suspect, they should not show the witness photographs but should conduct an identification parade (ID parade). This is because if the witness has already seen a photograph of the suspect, it may affect the witness’s judgement at the ID parade. At the end of the trial, the judge will warn the jury that the ID parade is suspect evidence because the witness had already seen a photograph of the accused.

ID parades are dependent on the suspect’s co-operation. Where a suspect refuses to participate, the Gardaí are entitled to obtain identification by informal means (for example, where a witness points out the suspect on the street). However, it is considered that a formal ID parade is much more reliable and whether informal identification will be admitted as evidence depends on the circumstances of the case.

The advantage of holding an ID parade is that it is a controlled process and the suspect’s solicitor is allowed to attend to ensure that the process is carried out correctly. While ID parades are frequently used by the Gardaí, the process is not provided for in law. There are, however, a number of formalities or rules which have developed over time as a result of case law in Ireland. The following are the main rules in relation to the holding of ID parades:

• ID parades should be conducted by a Garda officer who is not connected with the crime but who has been made familiar with the circumstances of the case and information relevant to the witness.
• The witness should not see the accused being arrested or taken from custody to the parade room.
• If several witnesses are required to attempt to identify the suspect they should be kept apart before and after the parade to minimise consultation between them.
• The witness should be asked to identify the suspect from a line of 8 to 12 people, chosen because they look similar to the suspect.
• When the volunteers have been arranged in a line, the suspect should be asked if he has any objections to the composition or appearance of the parade.
• When the parade is completed, the accused and his solicitor should be asked whether he has any comments to make with regard to the parade.
• Details of the parade and any objections made by the accused or his solicitor must be recorded by the office responsible for conducting the parade.
• If a witness fails to identify the accused, this fact should be disclosed to the defence by the prosecution.