Tuesday, February 08, 2011

The difficulties of cross-cultural identification where the victim, witnesses and accused have cultural and racial difference

In litigation, where the victim, witnesses and accused have cultural and racial difference, identification invariably become significant, particularly where and when they are cross-cultural strangers: R. v. Wright, 2011 CarswellOnt 63, [2011] O.J. No. 76, 2011 ONSC 194 (Ont. S.C.J., Jan 10, 2011), is illustrative of such difficulties. Ms. Robinson is White, Mr. Wright is Black.

Mr. Justice Frank Marrocco made the followig findings based on the evidence of this witness in cross-examination, that I conducted of her:

15     Ms. Robinson made two observations about the unmasked robber on which I intend to comment. I make this observation because a serious inconsistency between Ms. Robinson's description of the robber and Mr. Wright's appearance would have been relevant even though I attached no weight to her in-court identification of Mr. Wright.
16     First, Ms. Robinson said the unmasked robber was a light-skinned black man. Ms. Robinson indicated that she had worked in the entertainment industry as a singer for the last ten years. She said she had some experience with light-skinned, brown-skinned and dark-skinned black people. Pictures of the accused were introduced in evidence in exhibits 9 and 14. No expert evidence was called concerning the accuracy of the description of Mr. Wright as a light-skinned black man. Accordingly, I attach no significance to this observation by Ms. Robinson. I do not believe that it is appropriate for this court to determine, in the absence of evidence, whether it is accurate to describe Mr. Wright as light-skinned.
17     Second, Ms. Robinson said that the unmasked robber had a "chinstrap beard". She said it came around his face thinner than a full beard. Mr. Wright's beard can be seen in exhibits 9 and 14. Ms. Robinson's description of the beard is not inconsistent with the beard shown in those photographic exhibits. Nevertheless, for the reasons which I set out earlier, I attach no weight to her in-court identification of Mr. Wright.
In another case, R. v. Taylor, 2010 ONCJ 396, [2010] O.J. No. 3794, whether the victim as White and the accused Black, Mr. Justice Green observed:

62        The nature of the identification in this case requires me to alert myself to the risks associated with this species of evidence. Eyewitness identification evidence, particularly of cross-cultural or cross-racial strangers in, as here, heated situations with limited windows of observation, are notoriously suspect. As said by the Court of Appeal in R. v. Hanemaayer, 2008 ONCA 580 (Ont. C.A.), at para. 29, "Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions". Eyewitness identification evidence — even standing alone and even where, as here, bottomed on the testimony of a single witness — can ground a legally and factually unassailable finding of guilt. However, appellate courts have repeatedly cautioned jurists of the need for special caution in assessing such evidence: see, e.g., R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.); R. v. Trochym (2007), 216 C.C.C. (3d) 225 (S.C.C.); R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.); R. v. Spatola, [1970] 3 O.R. 74 (Ont. C.A.); R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.); and R. v. A. (F.), [2004] O.J. No. 1119 (Ont. C.A.).
63        Eyewitness identification is particularly dubious where, as here, it includes dock-identification (the pointing out in court of the defendant as the alleged perpetrator) or, in a worst-case scenario, where positive identification occurs for the first time in a courtroom setting. (See, e.g., R. v. A. (F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.) and R. v. Tebo (2003), 175 C.C.C. (3d) 116 (Ont. C.A.). Given the circumstances surrounding Cid's dock-identification of the defendant, and given Cid's own explanation of the factors bearing on the integrity of this identification, as quoted earlier, Crown counsel rightly eschews any reliance on the witness' courtroom identification of the defendant. Her, theory, instead, is that Cid's initial and careful inspection of his assailant and his uninterrupted observation of that man until the point when the man — unquestionably the defendant — is arrested by the police confirms the reliability of his identification. In other words, the continuity of Cid's observation, coupled with his honesty, affords adequate proof of the defendant's commission of the assault.
These observations by Jurists reinforces the responsibility of all participants in the criminal justice system to display cultural competence and to be alert and alive to the difficulties inherent in this species of evidence.

My friend, Leanne O'Donnell, also referred me to a timely article Mark Roth, "Looking across the racial divide: How eyewitness testimony can cause problems" December 26, 2010, Pittsburgh Post.

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