Criminal Law

Identification evidence is all about reliability: Neuberger

By Paul Russell, Contributor

Juries must be very careful when assessing the reliability of eyewitness evidence, as there is a very good chance it is incorrect, says Toronto criminal lawyer Joseph Neuberger.

“Judges in Canada always warn jurors about the inherent frailties of identification evidence,” says Neuberger, partner with Neuberger & Partners LLP.

“Eyewitnesses may be sincere and honest, but, completely wrong,” he tells

A recent Global News article examining wrongful convictions states that a U.S. study found that the majority of eyewitness accounts are incorrect.

“According to the U.S.-run nonprofit organization, The Innocence Project, faulty eyewitness testimony was a contributing factor in about 70 per cent of convictions overturned through DNA testing in the U.S,” the article notes, adding, “it’s also a leading cause of wrongful conviction in Canada.”

Faulty eyewitness testimony helped to wrongly convict a Toronto man of murdering his girlfriend in 1992, the story states, with the Crown relying “heavily on the testimony of two people who claimed to have seen (them) together on the day of her disappearance.”

“Defence lawyers know the challenges that come with eyewitness testimony,” Neuberger says. “Courts must be extremely careful when relying on eyewitness identification.”

He says researchers are still trying to understand how the human mind is able to encode eyewitness information into the memory, and then be able to recount those images afterward.

“Often that image in the memory is conflated with images that a person may have of other people in their lives or other people on the scene, and that results in an extremely high rate of inaccuracy with the identification of strangers,” says Neuberger.

He recounts a recent case where the key eyewitness admitted he might have misidentified his client in court.

“In cross-examination, he admitted, ‘I could be wrong. I can’t say for sure that’s the person, because people look alike,’” Neuberger says.

If an individual is making an identification of a stranger, he says that is a stressful, emotional situation, which makes it even more difficult for an eyewitness to have an accurate visual memory of a person.

“Eyewitnesses may believe that they’ve got it right, and they may be sincere and honest in their belief they’ve identified the right person. But, in fact, they are often wrong as their memories are unreliable,” says Neuberger.

He says the problems of identifying a suspect from a police lineup or photos is compounded if the eyewitness and the suspect are different races.

“Cross-racial bias is simply misinterpreting features because of the commonality that we see among people of that race,” Neuberger says. “It is a perceptual bias, not a bias against an individual because they are part of an identifiable group.”

In Canada, the courts have done an excellent job in recognizing the weakness of identification evidence and issues like cross-racial bias, and they have been very careful about giving very strict instructions to juries about how to assess that evidence, Neuberger says, adding, “It’s not about truthfulness, it’s about reliability.”

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