Pre‐Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures
| Published date | 01 May 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00696.x |
| Date | 01 May 2008 |
THE
MODERN LAW REVIEW
Volume 71 May 2008 No 3
Pre-Trial Defence Rights and the Fair Use of Eyewitness
Identi¢cation Procedures
Andrew Roberts
n
This paper sets out the normativebasis of a claim to procedural rights concerning the fair use of
eyewitness identi¢cationprocedures. It is argued that there are twoaspects to suspects’procedural
rights.The ¢rst aims to s ecure an opportunity for the suspect to participate in procedures where
doing so might result in exculpatory evidence (a participatory right). The second is the state’s
obligation totake reasonable measures to prevent wrongful convictionon the basis of mi staken
identi¢cation by providing the suspect with a satisfactory degree of procedural accuracy(a pro-
tective right).Th is normative analysis provides the basis of a claim thatArticle 6 of the European
Convention on Human Rightsprovides a suspect with similar rights. The ¢nal part of the paper
considers whether domestic procedure is compatible with these putative rights, and whether it
could be said to provide an e¡ective remedy if they were tobe breached.
INTRODUCTION
The problem of mistaken identi¢cation i s generally thought of as a practical
issue.
1
The vast literature on the subject has tended to address various factors
which a¡ect the accuracyof identi¢cation procedures.While there arerecent signs
of the courts referring to rights whe n discussing identi¢cation i ssues, relatively
little e¡ort has been directed towards the elucidation of a normative account
which might determine when identi¢cation procedures should be conducted
and the form they ought to take.The courts have noted that Article 6 of the Eu r-
opean Convention on Human Rights is relevant to issues concerning identi¢ca-
tion, but, while this is a step in the right direction, there has so far been no real
attempt to identify the nature and extent of a suspect’s Convention rights in this
respect. Convention rights are stated at a relatively high level of generality and
arriving at a satisfactory understanding of what they demand in speci¢c proce-
dural contexts is no simpleprocess.This article aims to ¢ll these gaps in thel itera-
ture by providinga normative account of identi¢cation procedures.The ¢rst part
n
School of Law, University of Warwick. I am verygrateful to Victor Tadros, AndrewAshworth and
the anonymous referees for providing valuable comments on earlier drafts of this article. I remain
responsible for any shortcomings.
1 W.Twining,‘Identi¢cation and Misidenti¢cation in Legal Processes: Rede¢ning the Problem’i n
S. M. A. Lloyd-Bostock and B. R. Cli¡ord (eds), EvaluatingWitnessTestimony: Recent Psychological
Research and New Perspectives(Chichester: Wiley,1983) 270.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (3) 331^ 357
sets out the normative foundations of procedural rights relating to the fair use of
eyewitnessidenti¢cation procedures. I will suggest that these rights have two dis-
tinct functions which serve both to ensure that identi¢cationprocedures are con-
ductedwhere doing so might produce evidence which assiststhe defence, andthat
the procedures which are used are su⁄ciently reliable. In the second part of the
article I draw on existing Convention jurisprudence to argue that Article 6 pro-
vides suspects with rights which re£ect the nor mative rights described i n the pre-
ceding section. The third and ¢nal section considers the extent towhich domestic
criminal procedure is compatible with these putative Convention rights and,
importantly, whether it is capable of providing an adequate remedy in the event
of a breach.
NORMATIVE FOUNDATIONS
One notable characteristic of the adversarial tradition is that parties are left to
determine the issues to be contested at trial.
2
However, the adversarial nature of
proceedings provides the parties with a powerful incentive to conduct the case in
ways which adversely a¡ect the completeness of the evidence presented to the
fact-¢nder.
3
A party might be expected to obtain and adduce only evidence
which advances its interests. So where a party is in possession of evidence which
it perceives to be adverse to those interests, there is a natural tendency to avoid
disclosing its existence to the other side. Furthermore, where the party enjoys
control over access to such evidence, or the means of generating it, its interests
are served by declining to collect, retain, orcreate it.
In the context of eyewitness identi¢cation evidence these adversarial inclina-
tions may be manifested in various undesirable tendencies. These might include
adopting procedures which increase the likelihood of obtaining evidence which
could be used to support th epro secution case notwithst anding the signi¢cant risk
of error which may be associated with the use of such procedures.
4
In the early
stages of an investigation concerns over the probative value of identi¢cation evi-
dence might be subordinated to the more pressing need to establish a prima
facie case agai nst a suspect, with little thought given to the need to produce reli-
able evidence for use at trial ^ a particular danger given that most defendants
will eventually plead guilty.
5
And where the prosecution case is not dependent on
evidence that an eyewitness might be able to provide, the possibility that an
2 See further M. Damas
›ka, EvidenceLawAdrift (New Haven:YaleUniversity Press,1997) 74^124.
3ibid 99.
4InAlexander vR(1981) 34 ALR 289, the High Court of Australia suggested that the methods of
identi¢cation that the police might choose to use to procure identi¢cation evidence from an eye-
witness would probably not be calculated to produce evidence of high probative value.
5 See K. Hawkins,‘Using LegalDi scretion’ in K. Hawkins(ed),The Uses of Discretion (Oxford: OUP,
1992)31, who points out thatthe nature of the constraints felt by those exercising discretion may
change as the legal process evolves:‘. . . decision-makers at di¡erent points in the handling system
might be expected to have di¡erent priorities; indeed, there may be not only di¡erent sets of
resource constraints operating, but also quite di¡erent value systems’. For more detailed analysis
see K. Hawkins,‘Order, Rationality and Silence: Some Re£ectionson Crimi nalJustice Decision-
Making’in L. Gelsthorpe and N.Pad¢eld (eds), Exercising Discretion:Decision-Making in the Criminal
JusticeSystemandBeyond(Cullompton:Willan, 2003).
Pre-Trial Defence Rights and the Fair Use of Eyewitness Identi¢cation Procedures
332 r2008 The Author. Journal Compilation r2008 The Modern LawReview Limited.
(2008) 71(3) 331^357
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