Criminal Litigation SGS 7 Identification, Care Warnings and Lies

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billsykes
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Criminal Litigation SGS 7 Identification, Care Warnings and Lies
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2013-03-30 09:39:57
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Criminal Litigation SGS 7
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  1. Jerry and Cody are accused of committing a robbery at a jeweller's shop. A number of hall-marked gold rings were stolen. Cody has a number of minor convictions. The incident was witnessed by Samuel and Karen, both of whom gave descriptions of the two robbers. Jerry fits the description given of one of the robbers, but Cody only remotely fits the descriptions given of the other robber. Both Samuel and Karen identify Cody at a subsequent ID procedure, but only Samuel identifies Jerry. Both Cody and Jerry deny being involved and argue that the identifications are mistaken. There is no other evidence implicating the Defendants.

    Which ONE of the following is WRONG?

    [A] If he considers the quality of the identification evidence to be poor, the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the identification.

    [B] Since the defence case is based on a defence of mistaken identity, the judge has a discretion whether to give a warning about the dangers of identification evidence.

    [C] The judge should identify for the jury the evidence which has been presented during the trial that is capable of supporting the identification evidence.

    [D] The judge may direct the jury that Samuel’s identification of Cody may support Karen’s identification of Cody, but the judge must warn the jury that the two witnesses could both be mistaken.
    [B] Since the defence case is based on a defence of mistaken identity, the judge has a discretion whether to give a warning about the dangers of identification evidence.

    This is INCORRECT – the warning as set out in Turnbull is mandatory whenever ID is in issue.
  2. Jerry and Cody are accused of committing a robbery at a jeweller's shop. A number of hall-marked gold rings were stolen. Cody has a number of minor convictions. The incident was witnessed by Samuel and Karen, both of whom gave descriptions of the two robbers. Jerry fits the description given of one of the robbers, but Cody only remotely fits the descriptions given of the other robber. Both Samuel and Karen identify Cody at a subsequent ID procedure, but only Samuel identifies Jerry. Both Cody and Jerry deny being involved and argue that the identifications are mistaken. There is no other evidence implicating the Defendants.

    At trial, Cody gives an alibi which is proved by the prosecution to be false.

    Which of the following is NOT a correct direction the judge may give to the jury?

    [A] Cody’s false alibi can be regarded as supporting evidence for Samuel’s identification.

    [B] In deciding the evidential value of the false alibi the jury should consider whether there was an innocent motive for it.

    [C] The false alibi can only be taken as going to Cody’s credibility, not his guilt.

    [D] The jury can regard Cody’s failure during police questioning to mention the alibi as supporting the correctness of Samuel’s identification.
    [C] The false alibi can only be taken as going to Cody’s credibility, not his guilt.

    This is an INCORRECT direction
  3. John Smith is facing trial on one count of rape. His defence is consent. At trial, prior to the judge’s summing up to the jury, the defence advocate asks the judge to warn the jury of the dangers of acting on the Complainant’s uncorroborated evidence.

    Which of the following statements is CORRECT?

    [A] The judge must give the jury a warning, as the law requires a warning to be given whenever a complainant’s evidence in a criminal case is uncorroborated.

    [B] The judge may give the jury a warning. The precise wording of the warning is a matter for the judge.

    [C] The judge must give the jury a warning, as the law requires a warning to be given whenever the evidence of a complainant in a sexual case is uncorroborated.

    [D] The judge may not give the jury a warning, as the law prohibits it.
    [B] The judge may give the jury a warning. The precise wording of the warning is a matter for the judge.

    This is correct – see R v Makanjuola [1995] 1 WLR 1348
  4. Which of the following is a / are valid method(s) of identifying an offender:

    [i] Ear print comparisons
    [ii] DNA comparisons
    [iii] Facial mapping
    [iv] Voice recognition

    [A] [iv] only 
    [B] [iii] and [iv] only  
    [C] [ii] only
    [D] [i], [ii], [iii] and [iv]
    [D] [i], [ii], [iii] and [iv]

    Correct. See Kempster [No.2] [2008] 2 Cr.App.R.19 (ear prints), Reed [2010] 1 Cr.App.R.310 (an guidance on use of DNA evidence), Atkins [2010] 1 Cr.App.R.117 (facial mapping) and Flynn [2008] 2 Cr.App.R.266 (voice recognition).
  5. Who was Adolf Beck?
    1904 Case of mistaken ID

    Miscarriage of justice

    Proves mistaken ID is the actual or possible cause of wrong convictions
  6. What Code of PACE deals with ID?
    Code D of PACE 1984 deal with the identification of a suspect
  7. What can the police do to identify suspects?
    Must take a ‘first description’ of the suspect - Code D para. 3.2(a);

    They can drive the witness around the local area, or a particular neighbourhood to see if the offender can be spotted - Code D para. 3.2;

    They can’t point somebody out specifically Code D para. 3.2 (b) ‘care must be taken not to direct the witness’ attention to any individual unless, taking into account all the circumstances, this cannot be avoided.’

    They can show the witness pictures

    They should keep multiple witnesses separate to avoid contamination;

    They must record the action they have taken and the circumstances of any identification by the witness - Code D para.3.2(e).

    Once there is sufficient information to justify the arrest of a particular individual for suspected involvement in the offence, e.g, after a witness makes a positive identification, the provisions set out from paragraph 3.4 onwards shall apply for any other witnesses in relation to that individual. The police have a ‘known suspect.’
  8. Can police show photos to a witness?
    A witness must not be shown photographs,computerised or artist’s composite likenesses or similar likenesses or pictures (including ‘E-fit’ images) if the identity of the suspect is known to the police and the suspect is available to take part in a video identification, an identification parade or agroup identification.

    If the suspect’s identity is NOT known, the showing of such images to a witness to obtain identification evidence is allowed (must be done in accordance with Annex E).
  9. WHEN MUST AN IDENTIFICATION PROCEDURE BE HELD?
    When a suspect is known and available, an identification procedure must be held when either

    (i) a witness has identified the suspect or purports to have done so prior to a video identification, an identification parade or a group identification having taken place, or

    (ii) there is a witness available who expresses an ability to identify the suspect or where there is a reasonable chance of the witness being able to do so, and the witness has not been given the opportunity to identify the suspect in any of the aforementioned procedures, and

    in either case, the suspect disputes being the person the witness claims to have seen.
  10. What is a 'know suspect'?
    A suspect is “known” if there is and is “available” if he is immediately available sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence or will become available within a reasonably short time and is willing to take an effective part in at least one of the following identification procedures which it is practicable to arrange, viz. a video identification, an identification parade or a group identification: Code D:3.4.
  11. If a witness knows the suspect, must there still be an identification parade?
    An identification parade is not necessary, and may indeed be positively undesirable, when it is accepted that the accused is a person well known to the identifying witness. In such a case, a parade will establish the uncontroversial fact that the accused is able to identify the person he knows, but will not advance the question of whether that person committed the offence: see para. 14Brown and Isaac v. The State, 67 J.C.L. 469, PC ([2003]UKPC 10) and Goldson v The Queen [2000] UKPC 9 (23March 2000).
  12. How should the jury be directed when identification is an issue?
    Jury should be given a Turnbull direction.

    Whenever case against accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification.
  13. Is a Turnbull warning mandatory or discretionary?
    Mandatory

    Judge must instruct the jury of the need for such a warning where ID is an issue: The possibility that a mistaken witness can be a convincing one and a number can be mistaken.
  14. What factors will a judge direct the jury to consider in a Turnbull warning?
    Direct them to closely examine the circumstances of ID:

    How long under observation?

    Distance?

    Light?

    Impeded?

    Had witness seen accused before?

    How long between the original observation and the sequent ID (memories fade)
  15. When should the judge withdraw the case from the jury when ID is an issue?
    R v Turnbull

    When in judgment of trial judge, quality of ID is poor or it depends solely on a fleeting glance or longer observation in difficult conditions, judge should withdraw case from the jury and direct a NG verdict unless there is other evidence which goes to support the correctness of the ID.
  16. Can a judge order a dock ID?
    Yes, but probably never done.

    Although a trial judge retains a discretion to permit a dock identification, it is submitted that in practice the exercise of should not even be considered unless the failure to conduct an identification procedure was as a result of the defendant's default - John [1973] Crim LR 113.
  17. Can a witness ID a suspect from a video tape?
    There is no distinction in principle between the evidence of a man who looks at a video tape, or a security officer who sees the incident on a security monitor, and that of a bystander who observes the scene themselves.

    A witness may give evidence that he recognises or identifies a person from his viewing of a video recording of the alleged offence. In such circumstances, the tribunal of fact has to apply the Turnbull directions having regard not only to the witness, but also to the position of the camera, its opportunity for viewing that which it depicts, and to the nature and clarity of the film or recording: Taylor v. Chief Constable of Cheshire
  18. What is corroboration evidence?
    Independent evidence providing support or confirming other evidence in the case.

    DNA and fingerprints

    Confessions

    Defendant's lies

    Handwriting experts

    Conduct of defendant
  19. When is corroboration required by law?
    High Treason

    Perjury

    Speeding (if only eye witness and no electronic recording equipment)

    (any attempt of the above)
  20. What did the case of MAKANJUOLA [1995] establish?
    Previous mandatory corroboration warnings (eg for sexual offence, children, etc) removed but court retains discretion.

    If a warning is given, it should form part of the trial judge’s general review of the evidence, having been discussed and agreed with counsel in the absence of the jury.
  21. What is a 'Lucas direction'?
    The judge directs the jury that the Crown wishes to rely on the defendant lies to prove his guilt.

    The jury need regard that:

    The lie is deliberate and relate to a material issue

    The jury must be satisfied that there is no innocent motive for the lie

    The fact that the assertion is a lie must be established by independent evidence

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