To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.
“The issue of identification is one for you to decide as a question of fact”.
Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries.
The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial.
Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade.
In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.
II. MEANING OF IDENTIFICATION
‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”. The identity of a person can be established by the evidence of persons who know him.
III. SIGNIFICANCE OF IDENTIFICATION EVIDENCE
Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R, Mason, J. stated that:
“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”
The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned. Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.
In another case, where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.
IV. TURNBULL GUIDELINES ON IDENTIFICATION
In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull laid down important guidelines Judges in trials that involve disputed identification evidence.
Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The Judge should tell the jury that:
i. caution is required to avoid the risk of injustice;
ii. a witness who is honest may be wrong even if they are convinced they are right;
iii. a witness who is convincing may still be wrong;
iv. more than one witness may be wrong;
v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.
The Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:
i. the length of time the accused was observed by the witness;
ii. the distance the witness was from the accused;
iii. the state of the light;
iv. the length of time elapsed between the original observation and the subsequent identification to the police.
V. IDENTIFICATION EVIDENCE UNDER INDIAN LAW
Section 9 of the Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them. As per Section 9, facts which establish the identity of accused are relevant. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section.
Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts.
Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”
VI. MODES OF IDENTIFICATION
In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:
(i) Test Identification Parade (popularly known as TIP)
One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation. The utility of the evidence created by an identification parade was explained by the Supreme Court in Ramanthan v. State of Tamil Nadu. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”
(a) Procedure of TIP
A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.
The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary.
To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire.
(b) Value of TIP
Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused.
Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the same can be used only to corroborate the identification of accused by the witness in court.
Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P., that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.
In a case, where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.
Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact.
(ii) Video Identification
In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.
The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience.
(iii) Visual/Eyewitness Identification
An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness. Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high.
In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”. This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.
Eyewitness evidence is usually the main type of evidence on which convictions are based. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.
The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.
Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.
The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.
Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.” This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.
Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.” Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.
In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt.
Thus, the appreciation of the evidence of eyewitness depends upon:
– The accuracy of the witness’s original observation of the events which he described, and
– The correctness and extent of that he remember and his veracity.
(iv) Forensic Identification
When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed or, more commonly, never even existed in the first place. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.
Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.” In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.
In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.
(v) Voice Identification
Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw, something:
In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.
With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused.
It was recognised by New Zealand’s Court of Appeal in R v. Waipouri, that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in R v. Turnbull .
Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice.
In an Indian case, where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case, in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.
Recently, the Supreme Court in Dola v. State of Odisha, observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.
(vi) Previous Identification
Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification, for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency.
R v. Christie, is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.
Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused.
The Indian Supreme Court observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.
VII. VALUE OF IDENTIFICATION EVIDENCE
A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine.
In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court.
VIII. CONCLUSION AND SUGGESTIONS
Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.
* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email: firstname.lastname@example.org
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. 2017 Cri LJ 5011.
.Ibid at page 301.
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. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.
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. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also
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. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross  Crim LR 127 (CCA).
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. (1993) 98 Cr App R 313 (CA).
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. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).
. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).
. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).
. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).
. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).
. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).
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. Supra note 3.
.  2 NZLR 410.
.  Crim LR 183 (99/0458/X3).
.  3 WLR 445 (R v. Hersey  Crim LR 281 (CA), R v. Gummerson,  Crim LR 680 (CA), R v. Chenia,  2 Cr App R 83 (CA)). .
. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty,  1 Cr App R 77 (NICA).
. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue,  QB 678, CA. 295 (See Ch 10).
. R v. Burke and Kelly, (1847) 2 Cox CC.
. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).