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Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.
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11.24 Eyewitness Identification Evidence

Note[1]

(Last revised June 2023)

[1]              Identification is an important issue in this case. The case against (NOA) depends entirely (or to a large extent) on eyewitness testimony.

[2]              You must be very careful about relying on eyewitness testimony to find (NOA) guilty of any criminal offence. Innocent people have been wrongly convicted because reliance was placed on mistaken eyewitness identification. Even a number of witnesses can be honestly mistaken about identification. Eyewitness identification may seem more reliable than it actually is because it comes from a credible and convincing witness who honestly but mistakenly believes that the person charged is the person the witness saw committing the offence. [2]

[3]              There is little connection between great confidence on the part of the witness and the accuracy of the identification. Even a very confident witness may be honestly mistaken. A very confident witness may be entirely wrong about his or her identification evidence.

[4]              Eyewitness identification is a conclusion based on the witness’s observations. The reliability of the identification depends on the basis for the witness’s conclusion.

[5]              Consider the various factors[3] that relate specifically to the (each) eyewitness and his/her identification of (NOA) as the person who committed the offence charged:

(Select the applicable factors from each category below and review them with the jury. The list is not intended to be exhaustive.)

1. Reliability of the eyewitness

Did the witness have good eyesight?

Was the witness’s ability to observe impaired by alcohol or drugs?

Does the witness have a reliable memory?

Is the witness capable of communicating the observations s/he made at the time?

How accurate was the eyewitness’s judgment of distance?

(Review relevant evidence and relate to the issue.)

2. The circumstances in which the witness made his/her observations.

Had the witness seen the person on a previous occasion?

Did the witness know the person before s/he saw him/her at the time?

How long did the witness watch the person s/he says is the person on trial?

How good or bad was the visibility?

Was there anything that prevented or hindered a clear view?

How far apart were the witness and the person whom s/he saw?

How good was the lighting?

Did anything distract the witness’s attention at the time s/he made the observations? (e.g., stress from the production of a weapon, injuries, another event occurring simultaneously)

Was the perpetrator wearing a disguise?

(When cross-racial identification is in issue it may be appropriate to caution the jury regarding the frailties of this type of identification.)

(Review relevant evidence and relate to the issue.)

3. The description given by the eyewitness after s/he made the observations.

How long after the events did the eyewitness give the first description?

How specific was the description? (e.g., details of the physical description - weight, height, clothing, hair colour, facial hair, glasses)

Did the witness describe any features that are peculiar to the accused? (e.g., tattoos, scars)

Did the witness miss any obvious physical feature of the accused?

How does the description compare to the way >(NOA) actually looked at the time?

Did the witness ever give a different description of this person?

What are the differences between the descriptions? Are they significant or minor?

Has the eyewitness expressed uncertainty about his/her identification?

(Review relevant evidence and relate to the issue.)

4. The circumstances of the procedure followed for identification

(These factors are to be used when there was a photo or physical line-up.)

How long was it between the observation and identification procedure?

Did the eyewitness see a picture of (NOA) prior to the identification procedure, such a television newscast? Or on the internet?

Did anybody show >(NOA)’s picture to the witness to assist in the identification prior to the identification procedure?

Was anything done to draw the witness’s attention to a specific photo or person?

Was anything done to confirm the witness’s selection?

Was the line-up procedure fair? Did the other participants in the line-up share the physical characteristics of the accused? Were the photos similar? (e.g. size of the photo and colour).

Were photographs of other people shown at the same time?

Was anyone else present when the witness made the identification?

What did the witness say when s/he identified (NOA)?

(NOA) as the person whom s/he saw?

Has the witness ever changed his/her mind about the identification?

Was the witness exposed to other persons’ accounts or descriptions?

Did the witness change his or her description after such exposure?

Was the identification the witness’s own recollection of his/her observations or something put together from pictures shown or information received from a number of other sources?

(Review relevant evidence about the circumstances of identification.)

Include paragraph [6] when the in-court identification of the accused is the witness’s first identification of him/her as the offender, who was unknown to the witness at the time of the offence, and/or where there are circumstances casting doubt on the reliability of the identification. Otherwise, go directly to paragraph [7].

It is incumbent on the trial judge to identify all the circumstances that cast doubt on the reliability of the witness’s identification evidence. The trial judge is responsible for instructing jurors about the dangers of the identification evidence that they have heard, and cannot rely on the closing submissions of counsel alone.[4]

See R v Hibbert, 2002 SCC 39, at paras. 44-53 and R v Clark, 2022 SKCA 36, at paras. 72-139[5] for a discussion of the circumstances that can render an in-dock identification suspect, and the importance of identifying those circumstances for the jury. For example, if the witness saw photographs of the accused before the trial, he or she may be recognizing that person from the photographs rather than the offence.

[6]         (NOW) identified (NOA) in the courtroom while (NOA) was sitting in the prisoner’s dock. This identification is entitled to little weight. This is because there is a danger that the witness will assume that (NOA) is the offender merely because (NOA) is sitting in the prisoner’s dock.

Where applicable, the following instruction should also be given: There is also a danger that the witness may be recognizing (NOA) based on something other than seeing (NOA) commit the offence.)

You must also consider the following factors that may affect the reliability of (NOW)’s identification.

(Review relevant evidence and relate to the issue)

I remind you that a very confident witness may be entirely wrong with respect to his or her identification evidence.

In the rare case where the jury could conclude that the in-dock identification is the only evidence of identification read the following instruction.

If you conclude that the in-dock identification is the only evidence of identification then it would be unsafe to convict (NOA).

Remember, the Crown must prove beyond a reasonable doubt that it was (NOA) who committed the offence charged. Consider the evidence of the identification witness along with the other evidence you have seen and heard in deciding that question.

[1]  Note that where the eyewitness evidence is very weak (e.g., “a fleeting glance” by the witness), the trial judge should withdraw the case from the jury and direct a verdict of acquittal: Mezzo v The Queen, [1986] 1 SCR 802, at para 21.

This instruction should be given where the Crown’s case depends entirely or largely on eyewitness identification evidence that is challenged by the defence. In other cases, where there is eyewitness identification evidence that occupies a position of lesser prominence because of other evidence in the case, counsel should be asked in the pre-charge conference about the need for or the form of instruction.

When the defence submits eyewitness identification evidence, this instruction must be worded differently. The special warning regarding wrongful conviction does not apply to eyewitness evidence presented by the defence. The jury should, however, consider the same factors to assess the eyewitness identification evidence, but the instruction must be related to the standard of reasonable doubt. See R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.); R. v. Jeffrey (1989), 35 O.A.C. 321 (C.A.)[Lexis Advance Quicklaw]; R. v. Wristen (1999), 141 C.C.C. (3d) 1 (Ont. C.A.).

[2] R v Hibbert, 2002 SCC 39, at para 50.

[3] Some of these factors are mentioned in Mezzo v The Queen, [1986] 1 SCR 802, at paras 20-23.

[4] R v Clark, 2022 SKCA 36 at paras. 161-162, aff’d 2022 SCC 49 (reversing the majority of the Saskatchewan Court of Appeal and agreeing with the dissenting reasons of Justice Leurer).

[5] Affirmed by the Supreme Court of Canada (2022 SCC 49, reversing the majority of the Saskatchewan Court of Appeal and agreeing with the dissenting reasons of Justice Leurer).