Gallavin on Litigation: The importance of identifying Ernest

By Dr Chris Gallavin

Welcome back to this, the first litigation column for 2014. With the label of global “rock star economy” being thrown about in New Zealand like underwear at a Neil Diamond concert, many in the field of civil litigation in particular may start to see their practice change focus, away from problems associated with a falling economy toward problems associated with a booming one.

Whether or not there is truth in the saying that lawyers prosper no matter the state of an economy I predict that, on average, the fortunes of litigators will be on the up throughout 2014 and beyond.

Over the coming columns I hope to continue to provide a mix of views both technical and structural on specific aspects of litigation, attempting as I go to relate those to how and why the system operates the way it does.

My intention is to raise questions, a prodding if you will, for all of us to consider. I also hope to provide useful suggestions for litigators that will help to ensure they stay on top of their game, and perhaps, if I may be so presumptuous, even improve their practice. 

The adversarial process is, after all, merely a reflection of the norms (actual and aspirational) of the society we live in, and as society changes (let alone as science changes) so, too, should the system. My hopefully timely reminders of the connection between practice and societal norms will, fingers crossed, serve you well in your busy practices.

Over the coming editions I will examine a number of issues, including improperly obtained evidence in the little explored area of civil litigation and some of the possible consequences of the scientific evidence showing the weakness of demeanour evidence. For today, however, I want to look at visual identification evidence.

Visual identification evidence is a bread and butter area for all criminal law litigators. Its admissibility is prescribed clearly by legislation and, on the face of it, it makes a very poor topic for a column such as this.

But there is something peculiar about identification evidence. At base, our reliance on it seems intuitively sound, but science would suggest we are, at times, altogether too smug, too secure and too formulaic in our approach to it.

Visual identification is a form of evidence that is susceptible to two particular weaknesses.

The first is the unwavering certainty that often accompanies facial identification (even when such an identification is wrong), and the second is our willingness to believe those who say “he (or she) did it”.

The frailty of dock identification has also long been recognised. Most are familiar with the folklore of a witness pointing out a judge or prosecutor when being asked whether they could see in court the evil wrongdoer from the night in question. However, most times witnesses are faced with a fairly simple choice – the judge, registrar, lawyers or the person flanked by two prison guards? From the perspective of proving or undermining a case, however, no matter the surety of corroborating evidence supporting the identity of an accused, the failure to have admitted into evidence a positive identification of an accused will often see a strong case fatally undermined.

The dangers of relying too heavily on identification evidence have not been lost on the development of the law of evidence here in New Zealand and around the common law world. 

A peculiar aspect of this area is that despite the weakness but vital importance of such evidence many still seem to regard the 2006 legislative regime for the admissibility of identification evidence as a waste of time and ultimately unnecessary.

Annoyance at having to adhere to such procedures belies the fact that the majority of miscarriage of justice cases in many overseas criminal jurisdictions concern problems with identification.

This column has been prompted, in part, by a number of recent stories I have heard relating to the actions of some prosecution agencies and their near wilful ignoring of the requirements of s45 of the Evidence Act 2006.

In one case, the reluctant and very belated photographic montage that was put together for a complainant to identify their attacker resulted in the positive identification of a third, to then, unsuspected person who happened to live near the complainant and had relevant previous convictions. Charges were then dropped against the defendant for whom that montage had for months been regarded as unnecessary. This all occurred only a matter of weeks before the scheduled defended hearing.

Other accounts include a group of my law students being used for a particularly rare line up where my clean cut and well-dressed boys (and they were “boys”) were stood next to a mature man, who was heavily tattooed, bald and wore a police boiler suit while the complainant walked up and down less than an arm’s length away.

Other stories include the perceived difficulties in finding photographs of comparable individuals, and in one non police prosecution, the fact that the prosecution office did not have any photographs readily available for a montage.

Adherence to the provisions of s45, I am sure, is a hassle that most investigators would gladly do without, but those provisions are there for good reason.

For litigators and judges it is important to understand the science that has led to the development of s45. In this way, the seriousness of delays in undertaking a formal identification, total absences of any formal identification and half-hearted attempts at identification, will be better understood. As a consequence, the ambit of exceptions allowed for under the legislation and the common law will be kept narrow.

In this area, the letter of the law very closely mirrors the spirit of the law, giving real substance to the notion of the Evidence Act being a code. There are a number of publications that give an outline of the science and consequent frailty of identification evidence. Although reading them may seem suitable only for law students, a knowledge of the “why” question in this area may just well prove particularly useful to frustrated litigators faced with an absence of prosecution commitment to the need for formal identification. 

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.


This article was first published in LawTalk 835, 14 February 2014, page 20.