Examining eyewitness testimony in criminal cases

Examining eyewitness testimony in criminal cases

On behalf of Howard C. Cohen & Associates on March 22, 2019

Eyewitness accounts are not always perfect, and they remain less reliable than other types of evidence. As a result, The Canadian Commissions of Inquiry has made several recommendations to enhance eyewitness reliability. Below, we examine some of the flaws and recommendations regarding eyewitnesses.

Procedural issues

The process of securing eyewitness testimony is not perfect. In the course of an investigation, law enforcement agents may:

  • Give hints to an eyewitness, intentionally or not
  • Present a biased line up or photospread
  • Misrepresent witness statements or confidence of identification
  • Prematurely confirm or deny a person’s account or identification
  • Meet with witnesses together
  • Interview witnesses without proper training

To prevent faulty procedures from tainting or altering the accuracy of a person’s statement, officers should be properly trained on speaking to witnesses. This includes refraining from giving away information, correcting witnesses or making biases comments. Should enforcement agents engage in these practices, the identification could be invalid.

Individual complications

People’s memories are not concrete. Countless factors can impair our abilities to identify people. This includes:

  • Personal biases against certain types of people
  • Poor lighting or visibility issues
  • Impairment by drugs or alcohol
  • The amount of time between an alleged incident and talking to police
  • Other distracting events that may have been happening
  • The extent to which an eyewitness experienced fear or trauma during the event

Because of these factors, it is important to consider the reliability of witnesses carefully. If their memory seems flawed or inconsistent, other forms of evidence can be particularly important in reinforcing or contradicting a person’s statements.

Eyewitness testimony can have a powerful effect on the outcome of both civil and criminal cases. As such, it faces close scrutiny by courts and lawyers. It’s important that if you know someone who could help your case, or if you are offering eye-witness testimony yourself, that you consult with a lawyer for how to proceed with your evidence.