Identification Evidence Flashcards
(20 cards)
Unreliability of Identification Evidence:
Identification evidence can be very unreliable as there are so many variables that have to be taken into account including: human perception and recollection and the tendency of the mind to respond to suggestions.
Visual Identification:
S. 114 Evidence Act 1995 Exclusion of Visual Identification Evidence
Subsection (1)
Visual identification is things like identification parades, crowd scene, other non police photos, voice, physical uniqueness etc is all considered visual identification. So at this point it can be seen the Evidence Act treats identification evidence into two categories:
• Visual identification
• Picture identification
Visual Identification:
S. 114 Evidence Act 1995 Exclusion of Visual Identification Evidence
Subsection (2)- Admisability:
Visual identification evidence is not admissible unless you do an identification parade first. The only exception to this is if:
(b) it would not have been reasonable to have an identification parade. or
(c), the offender declined to participate in the process. And if you hold an identification
parade, do not in any way indicate who the offender is in the line up to the witness.
Visual Identification:
S. 114 Evidence Act 1995 Exclusion of Visual Identification Evidence
Subsection (3) - Is it reasonable to hold ID Parade (KIP RIF):
(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take
into account:
• Kind of offence, and the gravity of the offence, concerned, and
• Importance of the evidence, and
• Practicality of holding an identification parade having regard, among other things:
- Relationship (if any) between the defendant and the person who made the identification.
- Identification of defendant was made at or about the time of the commission of the offence.
- Failed to cooperate in the conduct of the parade–to the manner and extent of, and the reason (if any) for, the failure.
Visual Identification:
S. 114 Evidence Act 1995 Exclusion of Visual Identification Evidence
Subsection (4) – Unfair to the Defendant.
If the offender had some significantly unique physical or other perceived feature which
makes him / her stand out, then that would also be a reason not to hold an identification
parade.
Example: A significantly unique feature such as a tattoo on the face or an amputation etc.
Visual Identification:
S. 114 Evidence Act 1995 Exclusion of Visual Identification Evidence
Subsection (5) -Lawyer Not Present:
If the offender wants legal counsel or other support person present and that person is not available, then an identification parade should not be held.
Visual Identification:
S. 114 Evidence Act 1995 Exclusion of Visual Identification Evidence
Subsection (6):
- Do not use the excuse in using pictures as they were more readily available or easier to do than an identification parade.
- The Evidence Act is reinforcing the High Court’s view in that identification parades are the preferred method over the use of pictures
- Yes, parades should be done as soon as practicable, but do not use the excuse of
unavailability for short periods of time after the crime. Persistence for days at least must be displayed and recorded as to what attempts you made.
There are, colloquially known, 2 stages to identification, being:
• Detection Phase
• Evidentiary Phase
- The ‘Detection (or Investigation) Phase’ is where Police investigators (and the relevant witnesses of course) have absolutely no clue as to the identity of the wanted offender.
- The ‘Evidentiary Phase’ commences once those Police investigators receive information as to the name attached to that wanted offender.
Recording details of participants of identification parades:
• Do not record the names and addresses of the participants of the parade.
• If a video camera is available, record the entire parade. If not, take a photograph
depicting all participants, including the suspect.
Stopping the Identification parade:
• Stop the parade if the suspect no longer wants to participate or is not cooperating,
e.g., they try to cover their face.
• Record in your notebook why you stopped the parade and any conversation with the suspect. Ask the suspect to read the record and sign it.
Children as suspects in identification parades:
• Do not conduct an identification parade if the suspect is under 18 unless the suspect agrees, or requests in writing, one be conducted and a responsible adult
agrees in writing.
Identification from crowd scene:
• If the suspect refuses to take part in an identification parade or it was not reasonable to conduct one (for example, you do not have a suspect yet), you may, if you and the witness are proximate in location and time close to the commission of the offence, ask a witness to identify a suspect from a crowd scene.
Identification from crowd scene:
• Take the witness to an area where there is a crowd of people in which you believe the suspect might be present and the crowd:
- Contains a typical cross section of the community in terms of sex, age, physical characteristics etc
- Is in an area in which there is sufficient lighting to enable an accurate identification.
When conducting a crowd scene identification:
- Record in your notebook the time, date and place it was conducted, the general description and approximate number of people in the crowd (including sex, age range etc)
- Write what the witness did and the words used when the identification was made, and ask the witness to read, sign and date it
- Include the conversation referred to in the previous sub-paragraph in your statement for court, the statement of the witness, and the statement of anyone else who heard it.
- Record in your notebook why you used crowd scene identification preference to an identification parade.
Picture Identification:
S. 115 Evidence Act 1995 Exclusion of evidence of identification by pictures
Subsection (1):
- Photos that the Police take, keep and use are classed as ‘picture identification evidence’.
- Every other photo in the world taken, kept and used by everybody else on the planet that potentially identifies offenders is therefore considered as visual identification.
Picture Identification:
S. 115 Evidence Act 1995 Exclusion of evidence of identification by pictures
Subsection (2):
Photos that Police keep and use are not allowed to suggest the offender shown in the photograph was in custody.
Picture Identification:
S. 115 Evidence Act 1995 Exclusion of evidence of identification by pictures
Subsection (3)
If at the time your witness is looking at photo in an attempt to identify the offender, and at
that time the offender is in Police custody (either because of your investigation or on any other Police officer’s investigation), your witness should be looking at a photo taken of the offender while the offender was in that custody. The object of the law is to force Police to use the most recent photograph of someone who is secured in Police custody.
Picture Identification:
S. 115 Evidence Act 1995 Exclusion of evidence of identification by pictures
Subsection (4)
You do not have to use the most recent photo of your ‘police custody’ prisoner suspect that you were forced to use in the above subsection (3), if the suspect’s appearance had significantly changed or for some other reason it was not practicable to take that photo of the suspect, for example, the suspect failed to cooperate in posing for the photo.
Picture Identification:
S. 115 Evidence Act 1995 Exclusion of evidence of identification by pictures
Subsection (5)
When the suspect for the offence is in police custody, the use of the best possible evidence firstly by way of holding an identification parade. Police may only resort to the use of photos if the suspect is in custody if:
(5a) The suspect refused to take part in an identification parade or
(5b) The suspect’s appearance had significantly changed from the time of the
offence to the time of coming into police custody or
(5c) It would not have been reasonable to hold an identification parade.
Picture Identification:
S. 115 Evidence Act 1995 Exclusion of evidence of identification by pictures
Subsection (6)
Where it is apparent the identity of your suspect is not known or in doubt. You must always ask the suspect upon an electronic recording: ‘Will you take part in an identification parade?’
As you can see from the provisions of s114 and s115, it does not matter what the suspect’s answer is to this question, but for potential problems that may arise in the potential admissibility of your identification evidence, very little can be done to assist your investigation if this question is not asked.
