People who are suspects in a criminal investigation are often identified by witnesses and the identification of a suspect will be relied on by the prosecution in a criminal trial. Visual identification evidence is considered unreliable and innocent people have been convicted of crimes based on visual identification evidence. There are a number of logical reasons why such identification evidence is not reliable. Among these are:
- Poor lighting conditions, bad weather or the distance from which the witness saw the person
- The eye-sight of the witness may be in question
- The witness may have been in shock or may have only seen the person for a brief moment
Visual identification evidence
In order to ensure that identification evidence is not incorrectly interpreted by a jury, the courts are obliged to give each jury a special warning about the dangers of accepting visual identification evidence. This warning is not a corroboration warning but it must:
- State that honest witnesses with good observation opportunities have often made incorrect identifications, even at an identification parade.
- Carefully examine the identification evidence in the light of all the circumstances.
- Indicate the need for particular caution.
- Point out that the jury must be satisfied beyond all reasonable doubt that the identification was correct.
Gardaí often show photographs of suspects to witnesses at the early stages of an investigation. It is best practice by the Gardaí to firstly obtain a detailed description from the witness prior to any photographs been shown. This process gives an indication as to the power of the witness’s memory of the offender before being shown photographs. The witness should also be shown photographs of many possible suspects.
When a suspect has been identified by a witness using photographs and it is proposed to put this evidence to the jury, the defence counsel may raise the issue of the use of the photograph as evidence with the judge, in the absence of the jury. If the photograph shown to the witness came from Garda files, the jury would be aware that the suspect had been photographed by the Gardaí on a previous occasion and this could prejudice the jury. It is then a matter for the judge to decide whether or not this evidence should be put to the jury.
Photofits and identikits
While photofits and identikits are used by the Gardaí in criminal investigations, their use is more to assist them in trying to identify potential suspects than for use in a criminal trial. The fact that the photofit and identikit is unlike a photograph or video, which is real evidence, means that little weight would be attached to their use as a means of identification evidence in a court of law. Perhaps the best way to describe them is as an aid to a criminal investigation.
If the Gardaí have already identified a suspect, they should not show the witness photographs but should conduct an identification parade (ID parade). This is because if the witness has already seen a photograph of the suspect, it may affect the witness’s judgement at the ID parade. At the end of the trial, the judge will warn the jury that the ID parade is suspect evidence because the witness had already seen a photograph of the accused.
ID parades are dependent on the suspect’s co-operation. Where a suspect refuses to participate, the Gardaí are entitled to obtain identification by informal means (for example, where a witness points out the suspect on the street). However, it is considered that a formal ID parade is much more reliable and whether informal identification will be admitted as evidence depends on the circumstances of the case.
The advantage of holding an ID parade is that it is a controlled process and the suspect’s solicitor is allowed to attend to ensure that the process is carried out correctly. While ID parades are frequently used by the Gardaí, the process is not provided for in law. There are, however, a number of formalities or rules which have developed over time as a result of case law in Ireland. The following are the main rules in relation to the holding of ID parades:
- ID parades should be conducted by a Garda officer who is not connected with the crime but who has been made familiar with the circumstances of the case and information relevant to the witness.
- The witness should not see the accused being arrested or taken from custody to the parade room.
- If several witnesses are required to attempt to identify the suspect they should be kept apart before and after the parade to minimise consultation between them.
- The witness should be asked to identify the suspect from a line of 8 to 12 people, chosen because they look similar to the suspect.
- When the volunteers have been arranged in a line, the suspect should be asked if he has any objections to the composition or appearance of the parade.
- When the parade is completed, the accused and his solicitor should be asked whether he has any comments to make with regard to the parade.
- Details of the parade and any objections made by the accused or his solicitor must be recorded by the office responsible for conducting the parade.
- If a witness fails to identify the accused, this fact should be disclosed to the defence by the prosecution.
While fingerprint evidence is accepted as a form of identification, this form of identification evidence must be given by an expert witness (a fingerprint expert). However, in order that fingerprint evidence can be used, the Gardaí or prosecution must be able to match a fingerprint left by a culprit at the scene of a crime with that of a set of fingerprints taken from the accused in a controlled situation (that is, taken in a Garda station).
There are certain requirements in law whereby if you are detained after arrest you are obliged to provide the Gardaí with your fingerprints. Refusal to allow the Gardaí to take your fingerprints may have consequences for you at your trial.
The Criminal Justice (Forensic Evidence) Act 1990 gives the Gardaí the power to take certain samples from any person who is detained after arrest under:
- Section 30 of the Offences Against the State Act 1939
- Section 4 of the Criminal Justice Act 1984
- Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
- Section 50 of the Criminal Justice Act 2007
The purpose of taking these samples is to assist the Gardaí in establishing whether or not the person was involved in the commission of the crime. This is another form of identification of a suspect but has the added advantage of also being able to eliminate suspects.
The following are the samples which the Gardaí are allowed take for forensic testing. A sample of:-
- Pubic hair
- Hair other than pubic hair
- A nail
- Any material found under a nail
- A swab from any part of the body other than a body orifice or genital region
- A swab from a body orifice or a genital region
- A dental impression
- A footprint or similar impression of any part of the person’s body other than a part of their hand or mouth
None of the above samples are taken unless authorised by a member of the Gardaí not below the rank of Superintendent. The actual taking of the samples will be performed by a doctor or dentist except for the samples which are not specialised or intimate samples. These samples such as head hair may be taken by a Garda. More information on forensic evidence is available in the document on real evidence.
The courts in Ireland accept identification proved by DNA evidence. DNA testing can be done on a tiny sample of blood, semen or any body tissue. These may be obtained at the scene of a crime and can also be obtained from suspects. When a DNA test is done, a profile of the DNA is taken.
DNA profiling refers to the identification of particular parts of the DNA. The profile from the sample can be compared to a suspect’s DNA profile to see if they match. More information is available in the document on DNA evidence.
For more detailed information you should seek legal advice.