Recognition Evidence

The term recognition evidence may seen foreign to some United States judges but we have cameras seemingly everywhere and as a result a lot of recognition evidence. Thanks to Judge Wayne Gorman we now have the Canadian perspective on recognition evidence. R. v. Hudson, 2020 ONCA 507, August, 12, 2020, at paragraphs 28 to 34: Where there is video or photographic evidence capturing the commission of an offence and the identity of the perpetrator is at issue, one way in which the Crown may seek to prove that the accused is, in fact, the perpetrator is by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them and assist the trier of fact in determining whether the accused is the person seen: R. v. Leaney, [1989] 2 S.C.R. 393. In order for such recognition evidence to be relied upon by the trier of fact, two distinct inquiries must first be undertaken. To begin, the trial judge must determine whether the evidence meets the threshold requirements for admissibility. If this test is met, the trier of fact must then assess the evidence to determine its ultimate reliability and the appropriate weight, if any, that can be properly attributed to it. In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, this court outlined the test for threshold admissibility of recognition evidence. Blair J.A. labelled the test as the “prior acquaintance/better position” test. The court set out two steps that must first be met before threshold admissibility can be established. The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have “some basis” for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, must be in a better position than the trier of fact to identify the perpetrator, in the sense that they have “some advantage that can shed light on the evidence in question”: at paras. 14, 21. The thrust of this inquiry is aimed at determining the level of familiarity of the potential witness with the accused. In assessing this level of familiarity, the trial judge should focus on the nature of the relationship between the potential witness and the accused, including the frequency and intensity of past contact. The fundamental question for the trial judge, is whether the potential witness is sufficiently familiar with the accused such that the witness may be able to provide valuable identifying information about the accused that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or unlikely to ascertain for him or herself. In answering this question, the trial judge should base his or her determination primarily on the evidence of the nature of the relationship, including the nature of past contact, as opposed to a potential witness’ anticipated testimony. While a potential witness’ anticipated testimony may be of assistance in borderline cases, trial judges should be wary of the allure of potential witnesses who, despite having only a general level of familiarity with the accused, purport to be able to offer descriptions capable of identifying them. In other words, a trial judge should generally only permit a potential recognition witness to testify where the judge is satisfied, on a balance of probabilities, that the witness’ relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information. The trial judge is in the best position to determine the “prior acquaintance/better position” test. That determination on the admissibility of recognition evidence is entitled to deference, absent an error in principle or an unreasonable ruling. Where a trial judge finds that the requirements for threshold admissibility have been met, the recognition witness will be permitted to testify. It will then be the role of the trier of fact to assess the witness’ testimony to determine its ultimate reliability and the weight that can be properly attributed to it, if any. In doing so, the trier of fact should consider the following, non-exhaustive list of factors as indicia of reliability: 1) the circumstances of the identification, including whether it was independent or suggested; and 2) the level of detail provided in the description, including the ability of the witness to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Berhe, at para. 22. However, the “importance of unique identifiable features varies with how well the witness knows the person he or she identifies” (the better a person knows the accused, the less important the articulation of identifiable features becomes): R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 46; 3) the quality of the video or photographic evidence upon which the witness is making their identification (the witness’ testimony will be more reliable as the quality increases); and 4) the circumstantial or direct evidence available that can corroborate or undermine the reliability of the witness’ description. In determining the ultimate reliability of the evidence, the trier of fact must also be cognizant of the fact that, as recognition evidence is a form of identification evidence, the “same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence”: 

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