Principles and procedures to admit and exclude evidence - Visual identification evidence and Turnbull guidelines

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Overview

Visual identification evidence is critical in criminal prosecutions but carries risks due to human perception and memory being subjective. To address these risks and ensure fair trials, a robust framework, centered on the Turnbull guidelines, assesses the reliability of visual identification. This article explores the principles and procedures for admitting and excluding such evidence, focusing on the Turnbull guidelines, vital for SQE1 FLK2 exam candidates.

The Nature and Challenges of Visual Identification Evidence

Visual identification evidence involves witnesses identifying a suspect based on their observations during a crime or afterward. While it appears straightforward, this evidence can lead to serious errors.

Psychological Factors Affecting Reliability

The reliability of visual identification is impacted by several psychological elements:

  1. Memory Distortion: Human memory reconstructs events and is prone to changes.
  2. Weapon Focus: A weapon can distract witnesses from noticing a perpetrator's face.
  3. Cross-Race Bias: Individuals often struggle more with identifying people from different races.
  4. Stress and Trauma: High-stress situations can impair memory accuracy.

Additional Factors Influencing Reliability

Several conditions can affect the reliability of identification evidence:

  • Observation Duration: How long the witness observed the suspect.
  • Distance and Lighting: Physical conditions during the observation.
  • Obstructions: Any barriers between witness and suspect.
  • Witness Factors: Mental state, including stress or intoxication.
  • Previous Acquaintance: Whether the witness was familiar with the suspect.

Admissibility and PACE 1984

The Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice, especially Code D, primarily govern the admissibility of visual identification evidence.

Section 78 of PACE

Section 78 allows courts to exclude evidence that could make a trial unfair. This is especially relevant for challenging identification evidence due to procedural errors or potential bias.

Code D of PACE

Code D outlines specific protocols for identification to reduce misidentification risk:

  • Photographic Identification: At least six photos, including one of the suspect.
  • Video Identification: Similar to photographic, using video.
  • Lineups: Live lineups with a minimum of six, including suspect and fillers.

The Turnbull Guidelines: A Structured Approach

The Turnbull guidelines, set in R v Turnbull [1977] QB 224, provide a framework for judges to evaluate identification evidence and guide juries.

Key Elements of the Turnbull Guidelines

  1. Observation Quality:

    • Duration and visibility
    • Familiarity with the accused
    • Reasons for remembering the accused

  2. Identification Circumstances:

    • Time between observation and identification
    • Discrepancies in description

  3. Supporting Evidence:

    • Presence of other supporting or contradictory evidence

Judicial Responsibilities Under Turnbull

The judge must:

  1. Warn the jury about the need for caution with identification evidence.
  2. Explain why such evidence can be unreliable.
  3. Highlight any specific weaknesses.
  4. Identify supporting or conflicting evidence.

Advanced Applications and Exceptions

While the Turnbull guidelines are central, various situations require careful handling:

Recognition Evidence

When a witness claims prior familiarity with the accused, the guidelines still apply with modifications:

  • Consider the witness's prior knowledge of the accused.
  • The risk of honest mistakes remains.

Dock Identifications

First-time court identifications are generally discouraged but may occur in rare cases:

  • The judge must caution the jury about the suggestiveness of dock identifications.

Multiple Witnesses

For evidence from multiple witnesses:

  • Assess each identification individually.
  • Caution the jury against assuming multiple identifications guarantee reliability.

Trial Application

Applying the Turnbull guidelines in trials requires careful strategy:

Pre-Trial

  1. Defense Strategy:

    • Challenge the admissibility under s.78 PACE.
    • Document any breaches of Code D procedures.

  2. Prosecution Preparation:

    • Ensure compliance with Code D.
    • Assess the strength of the evidence.

During Trial

  1. Cross-Examination:

    • Focus on observation conditions like lighting and duration.
    • Investigate discrepancies in descriptions.

  2. Expert Evidence:

    • Introduce expert testimony on eyewitness reliability as needed.

  3. Judicial Management:

    • Ensure the Turnbull guidelines are addressed thoroughly.
    • Clarify supporting or contradictory evidence for the jury.

Case Examples

Consider these scenarios for illustration:

Scenario 1: Insufficient Observation

A witness identifies a suspect after seeing them briefly in poor lighting conditions. The judge would advise the jury to consider observation quality and other supporting evidence.

Scenario 2: Witness Stress

A robbery victim, highly distressed, identifies a suspect days later with conflicting descriptions. The judge would emphasize the effect of stress on memory.

Scenario 3: Procedural Flaw

A witness identifies a suspect through a possibly flawed video procedure. The defense could argue for exclusion due to procedure errors.

Conclusion

Visual identification in criminal law is complex. The Turnbull guidelines provide necessary structure for assessment but require careful application of legal and practical principles. SQE1 FLK2 exam candidates must thoroughly understand these aspects.