Monday, September 05, 2011

Eyewitnesses And The Law Across The Pond

'It is in just such cases where the law eventually follows what ordinary people already know ... '

By Felicity Gerry
Barrister, London
Special To
The Cool Justice Report

It never ceases to amaze me how other countries are so far behind the developments in English law, although I never thought I would be saying that about the U.S.

A recent decision of the New Jersey Supreme Court (State v. Larry R. Henderson) brought in "sweeping new rules" on visual identification finally recognising scientific studies about mistaken identifications. It is in just such cases where the law eventually follows what ordinary people already know: We have all had our "Franky" moment.

In the words of Sister Sledge:

"I was walking down the street one day when I looked up I saw a friend … Hey Frankie! Do you remember me … he looked at me and then I blushed."

The song was probably about lost love, but the reality is that embarrassing mistaken identification is a daily occurrence. That's just an innocent example, but, imagine the danger if risks of mistaken identification are not properly recognised in a court of law.

The New Jersey decision only applies there, but is likely to have considerable impact across the U.S.

The debate across the pond rages as examples of misidentifications hit the press and the number of DNA exoneration cases continue to rise -- proving that mistakes in suspect identification have been made for years.

The Henderson case highlighted the additional risks of identification being affected by police conduct. Sandra Guerra Thompson, professor and director of the Criminal Justice Institute at the University of Houston Law Centre, added to the debate in the U.S.: "Memory does not operate like a video camera. It captures only a selective part of the events we encounter.

"People cannot prevent new information and suggestions from altering their memory, and time erodes memory, making retrieval difficult."

Over here, the dangers of mistaken identification have long been recognised: In 1905, Sir Arthur Conan Doyle took up the cause for Adolph Beck who was eventually pardoned after mistaken identification by 15 people. The case led to a Committee of Inquiry and ultimately to the creation of the Court of Appeal in England and Wales.

In 1976. Lord Devlin's Committee on Evidence of Identification led to the UK Attorney General instituting special procedures in identification cases. In 1977, the Court of Appeal in R v. Turnbull issued guidelines to be observed by trial judges when identity was an issue. These guidelines are still followed today. Any failure to follow those guidelines is likely to result in a verdict being unsafe and any conviction being quashed.

The guidelines issued by the New Jersey Court recognise that a witness's identification of a suspect can be flawed, that courts may need to hear preliminary submissions on reliability and that juries should be given detailed explanations on how to treat unsupported evidence of identification. In the Courts of England and Wales, a Turnbull direction includes:

* Warning the jury on the special need for caution before convicting an accused person in reliance on the correctness of the identification;

* Instructing the jury that a mistaken witness can be convincing;

* Directing the jury to closely examine the circumstances in which an identification came to be made -- length of observation, distance, lighting, position of any impediments to the line of sight, discrepancy between description given to the police and the actual appearance of the accused.

A Turnbull direction is always given even if procedures have been properly followed. It is not required if the issue is the reliability of the witness rather than accuracy. But, the jury will need to be confident that the witness is honest and reliable.

Reliability can be affected by police procedures. In 1984 in the U.S., Jennifer Thompson identified Ronald Cotton as the man who had raped her at knife point. She went to the police the same day, worked on a composite sketch and looked at a series of police photos, picking out Ronald Cotton. She almost inevitably picked out the same man in a lineup.

She has since written: "I knew this was the man. I was completely confident. I was sure."

Eleven years later, DNA tests proved her completely wrong. The innocent man had served more than 10 years in jail. Thompson is now an advocate for criminal justice reform.

In 1984, in the UK, Code D of the police codes of practice was issued, later incorporated into law annexed to The Police and Criminal Evidence Act 1984.

As Ms. Thompson was making her terrible error and Sister Sledge was a hit in the charts, the English police were given detailed rules on how to conduct safer identification procedures. These days, the procedures are about as safe as they can be. Police misconduct will lead to case collapse.

Procedures are conducted by police officers who have no connection with the investigation. A witness must state if they have seen a photograph first as they will invariably pick out the same person, making the identification virtually useless.

Lineups have been replaced by a database of video images allowing for a video parade. That is - video recorded images of the suspect looking left, right and ahead together with usually 11 images of similar stooges. Stooges are pre-recorded in a database and chosen by the suspect and / or his lawyer together with the police officer conducting the procedure -- thus accommodating people of every race and appearance.

Any failures by the police are examined by a judge in a pre-trial hearing. If an identification procedure has not been properly followed or if the evidence of identification is poor, the trial judge can remove the case from the jury long before they deliberate and direct a not guilty verdict.

Standard stuff you may think but seemingly not in the US. No wonder if find myself shouting at the TV during US crime dramas. It seems, however the lax procedures are not fiction but hitherto were fact. Inevitably some in the uS have suggested that imposing rules on the police, changing the burden of proof (which seems to have been placed on the accused) and warning juries of the dangers of mistaken identity will bring about the release of guilty suspects. However, the U.S. can be reassured that this is not something that has led to widespread case failure. Suspects are routinely identified on video procedures and the police follow this up by collecting supporting evidence which leads to conviction in serious cases.

I prosecuted a serial pedophile in just such a case who is now serving an indefinite sentence.

In the new Jersey case, Chief Justice Rabner was right: To reach safe convictions, "it is essential to educate jurors about factors that can lead to misidentifications."

The U.S. Supreme Court is scheduled to hear arguments on eye witness ID in November. Perry v. New Hampshire will be its first significant eyewitness identification case in 34 years. The case is concerned with whether judges must take a hard look at all identifications arising from suggestive circumstances or only those involving official misconduct.

This gives sufficient time for a flight to the UK for some research on how it's been done here for decades and to put Sister Sledge on the in-flight entertainment.


Felicity Gerry is a high profile criminal barrister and author specialising in serious fatal, sexual, financial and violent offences. She deals in international cases of fraud and people trafficking. As a rape specialist advocate she is described as an "expert" in her field by the editors of the Legal 500. Her podcasts for are some of the most popular in the country. Her greatest skill is in communicating complex legal issues in a simple and understandable way.

As a barrister, she is currently involved in cases concerning child rape, armed robbery and murder by stabbing to name but a few. She is a skilled advocate who appears in serious cases in Crown Courts across the country whilst maintaining a high media profile and a busy family life

Her first non-fiction book, The Sexual Offences Handbook which is co-authored with colleague Catarina Sjölin, has become an essential text for lawyers. It was published by Wildy, Simmonds and Hill in December 2009. It is the first of its kind to incorporate the law, practice and procedure for all sexual crimes from 1957 to the present day which also giving practical guidance on the applicable law and sentencing for sex crime trials.

Felicity Gerry is a popular and experienced broadcaster and writer with significant appearances on BBC television and Sky News, broadcasts on Panorama, BBC Radio 4's The Today Programme, The Jeremy Vine Show on BBC Radio 2, BBC Radio 5 Live and LBC. Felicity has written numerous commentary pieces in leading publications such as The Times, Daily Mail, The Daily Telegraph, The Independent and Daily Express. Alongside this, she writes for Counsel Magazine and The Barrister. Felicity is a regular contributor to The Times Online Law Central and is the official blogger for Criminal Law and Justice Weekly

Felicity lives in Bedford with her husband and their three children, her mother, two dogs, five chickens, her horse, two ponies and a foal. She has also written and published a children's book called 'Elsie the Pony' available on Amazon

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