"Introduction
Identification evidence has troubled courts for more than a century because identification evidence often appears cogent and is generally given by a witness who is creditworthy and thus often persuasive. This can make the evidence dangerous because a believable witness may nevertheless be honestly mistaken.
A number of special rules have been developed dealing with different aspects of the problems arising from identification evidence. It is important to remember that the rules deal with different aspects. Each case must be examined in the light of the particular issue with while it is concerned.
Issues in identification evidence
In dealing with identification evidence at trial, and also its subsequent examination on appeal, it is important to isolate the particular issue or issues raised in the evidence. Different issues have given rise to different rules.
(a) Initial observation at the crime scene
Brief observation by stranger
Brief observation of a suspect at a crime scene who is a stranger to the observer: This evidence is generally admissible as part of the circumstances surrounding the alleged criminal transaction even if the observer is unable to positively identify the suspect on a later occasion. The witness may give evidence of matters of similarity or dissimilarity between the suspect and the accused person. The exercise of a judicial discretion to exclude the evidence is enlivened. However, generally, the evidence is regarded as probative and admissible.
Observation of a suspect who is known to the observer
This is not evidence of identification but of recognition.
Recognition and identification
There is a difference between recognition and identification. A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene. While examination is undertaken by the court as to the circumstances under which the recognition at the crime scene was made - sometimes very similar to issues of identification - other problems associated with identification are absent. The witness had had a prior opportunity to be familiar with the suspect.
Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene. In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness') recollection of the person they observed at the crime scene.
This evidence is generally admissible. The conditions surrounding the observations at the crime scene may bear on the reliability of the evidence and may require a judge to give both general and specific warnings to the jury on the dangers of recognition.
Good circumstances of observation of a suspect by a stranger
Where an observer has a good opportunity to observe the suspect at a crime scene, the evidence is generally admissible, subject to a warning by a judge to a jury as to general and particular dangers in observation of the actions of strangers."