Criminal Law

Identification evidence 'inherently suspect'

In a jury trial that highlighted the frailties of identification evidence, Toronto criminal lawyer Roots Gadhia’s client has been acquitted of attempted murder and gun charges.

Her client had been charged with one count each of attempted murder, discharging a firearm and possession of a firearm in connection with a shooting that occurred outside the Million Dollar Saloon in Toronto Jan. 29, 2013.

The man spent 19 months in pre-trial custody before he was freed following the recent verdict.

In an interview with AdvocateDaily.com, Gadhia says the acquittal comes after a long, stressful period for her client.

“When the jury left the courtroom, he broke down and showed emotion,” she says. “And when he heard he was allowed to leave, he was very happy and in fact, is still getting used to being out of jail after 19 months behind bars.”

Gadhia explains how the central issue at trial was the identification of the shooter. A surveillance camera outside the bar captured a video of the initial altercation between the victim and another man, but it didn't definitively show the identity of the shooter.

The Crown’s case relied heavily on a witness who claimed he saw the shooter.

But Gadhia credits the members of the jury with their understanding of the frailties of identification evidence, despite the Crown witness who had identified her client as the shooter. She notes a police photo line-up, done nine months after the shooting, was a factor in the case.

“The certainty and confidence with which the witness gave his evidence may have been very persuasive to a jury, but not this one,” she says. “Their understanding of the frailties of that evidence, the issues surrounding the credibility of the witness and this jury’s sophisticated understanding of the issues resulted in an acquittal on all charges.”

Gadhia says in cases where identification is the central issue, most lawyers will choose a judge-alone trial over a jury trial because it’s believed that juries are often unable to appreciate that identification is fraught with problems.

“Most juries seem most receptive to, and not inclined to discredit, identification evidence,” she says.

In this case, Gadhia’s client initially elected to have a jury trial but was unable to re-elect to a judge-alone trial later in the process.

Gadhia says eyewitness testimony has historically had a powerful impact on juries and the courts have also recognized the inherently suspect qualities of eyewitness identification evidence, describing it as "notoriously unreliable.”

She points to the Innocence Project, an American non-profit organization that has worked on using DNA evidence in order to reopen criminal convictions that were made before such testing was available. The organization has stated that eyewitness misidentification is the single greatest cause of wrongful convictions in the U.S.

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