13.27 Furthermore, it seems clear that the structure of Part 3.9, according to which an identification parade must be carried out as a condition (subject to certain exceptions) for the admission of other evidence to identify eyewitnesses, would be absurd and illogical if applied to forensic identification evidence. [35] How long did it take between the initial sighting and subsequent identification with the police? 13.26 The first concerns the intent and political rationale underlying Part 3.9 of the Uniform Acts of Evidence. Discussions in previous ALRC reports make it clear that the identification provisions of Part 3.9 have been adapted to address specific issues arising from the fallibility of human perception and memory in the identification of eyewitnesses, requiring police to use certain techniques to ensure that such evidence is as reliable as possible. [33] At the time of the previous evidence investigation, DNA technology was not yet generally available; However, the use of fingerprint evidence was common. Nevertheless, the discussion in the reports is limited to the issues raised by the identification of eyewitnesses, as opposed to identification by forensic procedures. [34] 13.38 In R v. Rose, Wood J. noted in CL and Howie J that, although paragraph 165(1)(b) specifically refers to «proof of identification», there is nothing to prevent a general warning of unreliability under section 165 from being given with respect to evidence of visual identification that may not be reliable, but which does not fall within the scope of the definition of «proof of identification» in the act. [45] This evidence includes a visual identification that exonerates the accused. Their honours explained that proof of visual identification of a particular person is no more reliable because the identified person is not the accused. [46] They rejected Smart AJ`s conclusion that the section should not apply to other types of evidence of visual identification, as the section of section of section 165(1)(b) explicitly refers to «evidence of identification.» [47] The next chapter discusses the safeguards put in place to reduce the risk of misidentification.

13.24 Another view expressed is that DNA evidence would fall within the definition of «evidence of identification» since the wording of the definition is quite broad. The commentator notes that a statement that a person has the same DNA profile as the perpetrator is actually a statement of «similarity.» However, while current DNA and fingerprint evidence requires a person to make a «claim» about similarity (claiming similarity between the data collected and the defendant`s profile), this is not always the case. He explains that it may not be problematic to allow DNA evidence with a § 116 warning, but notes that for the time being, the problem is largely limited to conjecture. [32] 13.29 In addition, the definition of proof of identity explicitly requires a claim by a «person». This excludes «evidence resulting from identification by a sniffer dog or machine-assisted identification, such as . B.dem offers photos of surveillance cameras». [36] A similar situation exists with respect to forensic procedures, particularly DNA detections, which require the use of machines such as thermocyclers and chemical primers and reagents to create a DNA profile. [37] The fact that a person may be required to make sense of the forensic evidence in court and to correlate that evidence with the respondent`s profile has not yet been sufficient to make that expert`s testimony an «allegation of a person» within the meaning of the definition. According to the Commission, this is not such an `allegation`.

The availability of video identification means that cases where an identification procedure is not practical should be rare. For example, when the suspect has such distinctive features that appropriate disguises or modifications still cannot make the procedure feasible. 13.11 The common law distinguishes between evidence of similarity («evidence that a person has certain characteristics or characteristics in common with the accused or that he or she resembles the accused»[14] and evidence of positive identification (where a witness purports to recognize the defendant as the person seen at the occasion in question). [15] Although both forms of evidence are admissible, similarity evidence alone is not sufficient to justify a conviction, but is part of a circumstantial evidence case. [16] In addition, a judge is not automatically required to warn the jury of the dangers of circumstantial identification evidence. [17] 13.12 Contrary to the common law approach, the definition of «proof of identity» in the Uniform Statutes of Evidence also includes evidence that the respondent «resembles» a person who was at or near the place where the offence in question was committed. This means that evidence that the defendant «resembles» or has characteristics similar to those of the perpetrator of a crime is subject to Part 3.9 of the Uniform Laws of Evidence, including penalties 114 and 116. Evidence of visual identification is considered unreliable and innocent people have been convicted of crimes on the basis of evidence of visual identification. There are a number of reasons why evidence of visual identification is unreliable, including: Stop and identify laws in different states, which appear to be almost identical, may be different due to state court interpretations. For example, California`s «Stop and Identify» law, Criminal Code § 647(e), had wording,[35][36][37] similar to the Nevada law upheld in Hiibel, but a California Court of Appeals, in People v.

Solomon (1973), 33 Cal.App.3d 429, has interpreted the law as requiring «credible and reliable» identification that provides «reasonable security» for its authenticity. With this construction, the U.S. Supreme Court declared the law for vagueness in Kolender v. Lawson, 461 U.S. 352 (1983). [38] 13.18 Nevertheless, the definition of «proof of identification» in the Uniform Laws of Evidence is broad. It was suggested that the definition could inadvertently include evidence based on forensic identification techniques such as DNA evidence and fingerprint evidence. If that were the case, the admissibility of such evidence would be subject to the requirements of Part 3.9, including the holding of an identification parade before section 114 evidence could be admitted and a court order to the jury under section 116. [24] [33] See Discussion of Psychological Research on the Fallibility of Human Memory at the Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [419]–[421]. . .