12 Mar What is Identification Evidence?

Identification evidence refers to any testimony or material that links an accused person to the scene of a crime or to the crime itself. This evidence can take many forms, including eyewitness testimony, police testimony, photographic identification, video footage, and even voice recognition.

Identification evidence plays a pivotal role in criminal cases, often serving as the foundation upon which prosecutions are built. However, the reliability and accuracy of such evidence can be fraught with challenges. At FEDOROV Family Lawyers, we understand that misidentification can lead to wrongful convictions, devastating lives and eroding trust in the justice system.

In this article, we delve into what constitutes identification evidence, the factors that can influence its reliability, and the rigorous standards that must be met for it to be admissible in court. Our goal is to empower you with a clear understanding of this critical aspect of the law and how it can impact the outcome of a case.

Eyewitness Identification
One of the most common forms of identification evidence is eyewitness testimony. This involves a witness identifying the accused as the perpetrator of the crime, either in person or through a lineup or photoboard.

The High Court held in Smith v R (2001) 181 ALR 354 the purpose of section 78 of the Evidence Act 1995 (NSW) is to allow the opinions of eyewitnesses “to recount, as closely as possibly, their original perception so as to minimise inaccuracy and encourage honesty”. While eyewitness testimony can be compelling, it is also highly susceptible to error due to factors like poor visibility, stress, and memory distortion.

Police Identification
The law with respect to admissibility of a police officer’s opinion as to the identity of a person captured by surveillance footage is not clear cut. In Smith v R (2001) 181 ALR 354, the High Court held that this type of identification evidence is not relevant when “the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation”.

In Smith, the majority of the High Court placed weight on the fact that by the conclusion of the trial, “the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence”. In this regard, familiarity with the subject is an important factor is assessing the admissibility of identification evidence by police officers.

In R v Nguyen [2007] NSWCCA 363, the Court of Criminal Appeal confirmed the appropriateness of the Trial Judge’s ruling to admit the opinions of two police officers who had identified the accused from CCTV footage. The officers’ familiarity with the accused in Nguyen involved meeting with the appellant on over 50 occasions. Furthermore, there was evidence that the appearance of the appellant had changed between the incident and the court date.

In summary, the opinion of a police officer (who is not an eyewitness) as to the identity of the accused is ordinarily merely a step in the investigative process that led to the charges being laid and would usually not be admissible as identification evidence but for in specific circumstances.

Forensic Identification
Forensic identification evidence refers to the scientific methods used to link physical evidence from a crime scene to a specific individual. This type of evidence includes fingerprints, DNA analysis, bloodstains, hair samples, and other biological or trace materials.

Unlike eyewitness testimony, forensic identification relies on the objective analysis of physical evidence, making it a crucial tool in criminal investigations. However, the accuracy of forensic identification depends on proper collection, preservation, and analysis of the evidence, and it can be challenged in court if the methods used are flawed or if there is a risk of contamination.

Circumstantial Identification Evidence
In some cases, there is a lack of direct identification evidence such as eyewitness testimony or forensic evidence. Accordingly, the prosecution must rely upon circumstantial identification evidence to prove the guilt of the accused.

In The Queen v Baden-Clay [2016] HCA 35, the High Court outlined the approach to be taken in cases based on circumstantial evidence. The key point is that a jury cannot convict based on circumstantial evidence unless the evidence is inconsistent with any reasonable explanation other than the guilt of the accused. The guilt must be the only rational inference that can be drawn from the circumstances.

Further, in Lane v R [2013] NSWCCA 317, the Court of Criminal Appeal emphasised the difference between making a reasonable inference from proven facts and merely speculating. An inference must be based on objective facts, not conjecture. If there are no solid facts to support an inference, it becomes speculation, which is not sufficient for a legal conclusion.

Circumstantial evidence can include:

• Photographic Identification: In cases where the suspect is not immediately available for a lineup, witnesses may be asked to identify the perpetrator from a series of photographs. This method is widely used but is also prone to suggestibility, where the manner in which the photographs are presented can influence the witness’s choice.
• Video and CCTV Footage Identification: Surveillance footage can serve as identification evidence if it clearly shows the accused committing the crime. However, issues such as the quality of the footage, lighting conditions, and the angle of the camera can impact the clarity and reliability of this evidence.
• Voice Identification: Sometimes, identification is based on recognising the voice of the perpetrator. This form of evidence is typically used in cases involving phone calls or other audio recordings. Voice identification is subjective and can be influenced by factors like accents, voice modulation, and the familiarity of the voice.

At FEDOROV Family Lawyers, we are committed to ensuring that identification evidence is scrutinised meticulously, protecting the rights of the accused and upholding the integrity of the justice system. Understanding the complexities of identification evidence is essential for anyone involved in a criminal case, as it can significantly impact the outcome of the trial. Reach out today to discuss how we can help you or a loved one facing criminal charges.