Reform of the evidential rules for eyewitness identification in the United States – advice from the antipodes

Reform of the evidential rules for eyewitness identification in the United States – advice from the antipodes

The Federal Rules of Evidence (FRE) in the United States comprise a number of short provisions that are set out in plain language and are largely free of technical terms. Rule 801 deals with exclusions from hearsay, and sub-section (d) deals with statements that are not hearsay. FRE 801(d)(1)(C) covers the situation where the declarant testifies about a prior statement, and the statement identifies a person as someone the declarant perceived earlier. Eyewitness identification evidence is notoriously unreliable, and the courts apply the test enumerated in Manson v Brathwaite to determine the reliability of pre-trial eyewitness identification.

Manson identified a two part test where the first limb involves consideration of whether the police adopted a suggestive procedure pointing to the defendant as the perpetrator. If the procedure is satisfactory, then the identification evidence is admitted as there is no breach of due process. In the event the procedure is found to be suggestive, then the second limb applies and the court examines five factors to decide whether the identification is nevertheless admissible on the grounds of reliability. These five factors are: (1) the opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness’ level of certainty; and (5) the time between the crime and the confrontation.

The Manson decision has been criticized and will be further considered here, but the focus of this article is to view the admissibility of eyewitness identification evidence holistically from the voir dire to the judge’s summing up to the jury. Assuming that the evidence is admitted under either of the limbs set out in the Manson test, the next question is whether the evidence requires a warning to be given by the trial judge to the jury as to the dangers of convicting the defendant where eyewitness identification is the critical fact in issue and the mainstay of the prosecution’s case. In this regard, the evidential principles relating to eyewitness identification evidence in Australia (and to a lesser extent in England ) will be examined, with a view to making recommendations that the United States should adopt aspects of these principles, particularly the criteria triggering a warning from the trial judge to the jury.

c. University of Houston.