rules-of-court trial rules-of-evidence identification
In-court identification of defendants
<p>(Inspired by <a href="https://law.stackexchange.com/questions/36934/can-a-lawyer-subject-the-court-to-a-temporary-ruse-for-a-legitimate-purpose">Can a lawyer subject the court to a (temporary) ruse for a legitimate purpose?</a>)</p>
<p>Under which circumstances are witnesses asked to identify people present (in particular defendants) in the courtroom?</p>
<ul>
<li>In which jurisdictions is this a thing? (I know it happens in the US; what about the UK, etc?)</li>
<li>Are there rules mandating it (either local court rules, statutes, or jurisprudence), or is it something the parties may choose to do or not? If the parties choose, why would they do or not do it?</li>
</ul>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a><a href="/questions/tagged/criminal-law" class="post-tag" title="show questions tagged &#39;criminal-law&#39;" aria-label="show questions tagged &#39;criminal-law&#39;" rel="tag" aria-labelledby="criminal-law-container">criminal-law</a></p>
<p>In Canada, this is called &quot;in-<a href="https://justice.org.uk/in-the-dock/" rel="noreferrer">dock</a>&quot; identification and, while not prohibited, it is recognized to have very little probative value. It has &quot;particular frailties over and above the normal frailties attaching to identification evidence&quot; and &quot;adds little&quot; (<em>R. v. Izzard</em> (1990), <a href="https://canlii.ca/t/gd876" rel="noreferrer">54 CCC (3d) 252</a>, pp. 255-56 (Ont C.A.); <em>R. v. F.A.</em> (2004), <a href="https://canlii.ca/t/1grgd#par47" rel="noreferrer">183 CCC (3d) 518, para. 47</a> (Ont. C.A.)).</p>

<p><a href="/questions/tagged/new-zealand" class="post-tag" title="show questions tagged &#39;new-zealand&#39;" aria-label="show questions tagged &#39;new-zealand&#39;" rel="tag" aria-labelledby="new-zealand-container">new-zealand</a> <a href="/questions/tagged/criminal-law" class="post-tag" title="show questions tagged &#39;criminal-law&#39;" aria-label="show questions tagged &#39;criminal-law&#39;" rel="tag" aria-labelledby="criminal-law-container">criminal-law</a></p>
<p>This is commonly referred to as &quot;dock identification&quot; and is governed by <a href="https://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393637.html" rel="noreferrer">s 45 of the Evidence Act 2006</a> with further enunciation in <a href="https://forms.justice.govt.nz/search/Documents/pdf/jdo/86/alfresco/service/api/node/content/workspace/SpacesStore/e5b4349e-b1a6-4522-b27b-0c85c095bbea/e5b4349e-b1a6-4522-b27b-0c85c095bbea.pdf" rel="noreferrer"><em>Harney v Police</em> [2011] NZSC 107</a> at [26]–[28].</p>
<p>Basically, it is considered banned because visual identification has to be conducted according to a &quot;formal procedure&quot;, and identification by witnesses in courtrooms falls well short of those formalities.</p>
<p>The only exception is when there is &quot;a good reason for not following a formal procedure&quot; — the scenarios (a)–(f) listed in s 45(4).</p>
<p><em>Harney v Police</em> adds another &quot;good reason&quot; — in a nut shell it is when the defendant is well known to the witness:</p>
<blockquote>
<p>[26] We are satisfied that where the visual identification evidence
takes the form of a recognition by the eyewitness of someone already
known to the witness ... that can constitute a further good reason for
not following a formal procedure. ... [T]he formal identification
procedures in subs (3) are primarily directed towards identification
of strangers and the risk factors differ with identifications of
persons previously known to the witness. ...</p>
<p>[27] It does not follow,
of course, that merely because identification evidence takes the form
of recognition of a person known to the defendant, that factor will
necessarily provide a good reason for dispensing with a formal
procedure. It will not do so unless the appearance of the alleged
offender was sufficiently known to the witness before the time of the
alleged offending that a formal procedure would be of no utility. ...</p>
<p>[28] The sufficiency of the familiarity of the witness with the
defendant's appearance and the utility of a formal procedure need to
be gauged in the individual case. ... There can be, however, no
formulaic requirement, such as that the defendant must have been
&quot;well&quot; known to the witness. The degree of prior contact or knowledge
of appearance, and its sufficiency, must be assessed in each case
taking account of all the circumstances.</p>
</blockquote>
<p>In practice, however, parties may have hard times trying to convince the judge that there is (or isn't) a &quot;good reason&quot; to allow dock identification. Given the vagueness of the above passages by the Supreme Court, the rationales for/against dock identification are hard to argue and so are easy to sway either way.</p>

<p><strong><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="england-and-wales-container">england-and-wales</a></strong></p>
<p>In a similar vein to the other answers for Commonwealth jurisdictions, a <em>Dock Identification</em> is possible but rarely allowed in the Crown Court.  That said, a magistrates' court may consider using it for expediency for summary trials.</p>
<p>The <a href="https://www.cps.gov.uk/legal-guidance/identification" rel="nofollow noreferrer">Crown Prosecution Service</a> offers this:</p>
<blockquote>
<p><strong>Dock Identification</strong></p>
<p>This term refers to the identification of the accused for the first time during the course of the trial itself, by a witness who has not previously named him or identified him by means of a Code D procedure.</p>
<p>In view of the dangers posed by dock identification, the CPS and Attorney General’s Office have undertaken, in relation to offences on indictment, that:</p>
<p><em>“The [prosecution] … will not invite a witness to identity, who has not previously identified the accused at an identity parade, to make a dock identification unless the witness's attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances”</em></p>
<p>As a result, <strong>a judge will normally prohibit any such identification during a trial on indictment but different considerations may apply in minor summary offences.</strong></p>
</blockquote>

<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="new-south-wales-container">new-south-wales</a> <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="australia-container">australia</a></p>
<p><strong>There are strict limits on <em><a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/identification_evidence-visual_forms.html" rel="nofollow noreferrer">visual identification evidence</a></em></strong></p>
<p>This comes from Part 3.9 of the Evidence Act which is based on a uniform law across all states, territories, and the Commonwealth.</p>
<p><em>Visual identification evidence</em> (including in-dock identification) is permitted only when it was part of a properly conducted police line-up, it was reasonable in the circumstances that there was no line-up, or where the defendant refused to participate in the line up after receiving legal advice.</p>
<p>Even when it is admissible, the judge must instruct the jury of its low probative value and advice them that they must consider such evidence cautiously before assigning it any weight.</p>
<p>Exceptions apply when the defendant’s identity is not an issue at trial, or when the defendant is previously well known to the witness.</p>
