Social Media and Identification Evidence: A New Pathway to Wrongful Conviction

Joseph A. Neuberger and Jean Buie, Neuberger & Partners LLP

With the proliferation of social media, be it Instagram or Facebook, and with the police increasing the use of social media and television when searching for a suspect, there is an enhanced risk that an eyewitness identification, in particular an eyewitness in-dock identification, may be unreliable or tainted. So in this digital age, where people share, post and re-post, photos and news items across the internet, and where people frequently consider themselves to be amateur detectives with the tool of Google at their fingertips [1], what is the Court's approach to eye-witness identification evidence? And why should you care?

One of the leading causes of wrongful convictions is false or mistaken eyewitness identifications. [2] The Courts have frequently commented upon the fact that identification evidence is generally unreliable, as studies have shown that of all types of evidence, eyewitness identification is most likely to result in a wrongful conviction, even where multiple witnesses identify the same accused. [3] This is because, in part, eyewitness testimony is opinion evidence, and that opinion is based, in part, on "a host of psychological and physiological factors", including the fact that perception and memory are selective processes and people engage in a 'filling-in" process, unconsciously. This can lead to a final opinion that is quite different from reality, though the eyewitness has a sincere belief that it is accurate. Accordingly, the danger associated with eye-witness identification is that it is deceptively credible, largely because it is honest and sincere, and therefore difficult to address in cross-examination. [4]

Further, eyewitness identification can be contaminated by news broadcasts or through the use of social media websites such as Facebook. In R. v. Wolfe-Bard [2011] O.J. No. 871, the court of appeal overturned the conviction of the appellant and entered an acquittal as the judge failed to deal properly with the discrepancies between the victim's description of her assailant and Wolfe-Bard. What the Court did not comment on, and I would suggest it is because they agreed with the trial judge's decision regarding this evidence, is the fact that the trial judge rejected the victim's in-dock identification of Wolfe-Bard as her assailant as he considered the identification tainted by her viewing Wolfe-Bard's picture on Facebook a day or two after the robbery.

While the trial judge's decision in Wolfe-Bard regarding the tainted identification is certainly correct, and though Canadian jurisprudence has recognized that there are inherent dangers in eyewitness evidence, there is no absolute rule of exclusion and inevitably such evidence is dealt with by the Courts on a case by case basis. More frequently, the evidence is not excluded but rather admitted subject to arguments regarding the weight the evidence is to be given or the judge's charge to the jury regarding same. [5] And while it may be the responsibility of the judge in any given matter to ensure that they give proper instructions to a jury regarding the frailty of such evidence, such warnings may be insufficient to address the damage done.

Accordingly, eyewitness identification evidence, including in-dock identification, should be vigorously addressed by defence counsel. This may be by way of a motion brought by defence counsel asking that the evidence be excluded because it is unreliable or tainted as was done, albeit unsuccessfully, in R. v. M.T.; or, alternatively, it must be argued that the evidence ought to be given no or very little weight, ultimately the route the Court took in M.T. [6]

M.T. was a young person acquitted of aggravated assault. At the conclusion of the Crown's case, defence counsel brought a motion to exclude evidence of most of the Crown witnesses, because of "tainting" through allegedly improper identification procedures employed by the investigating officers. The motion was dismissed and concerns were addressed through argument as to weight. However, the Court stated that it approached the evidence of B.R. "with caution" because of the context in which he was provided with the defendant's name. Namely, B.R. had attended his daughter's school to gather information he hoped would help identify the person who stabbed his nephew. He met with the police officer assigned to the school who accessed Facebook accounts of certain individuals and showed him pictures of them and their Facebook friends. B.R. testified that he was horrified to see that one of the friends was M.T., "brandishing a gun and sporting Tibetan gang colours"; the entry also named the defendant. The Court acknowledged that the context in which B. R. was presented with the photo, suggesting that M.T. was involved in violent criminal activity, gave rise to a concern that he was improperly influenced in making his identification.

As such, careful attention must be paid to the use of social media by investigators or others in the search for suspects and the improper influence it will have on the value of identification evidence.

 


[1] For example, see R. v. V.(V.), 2011 ONCJ 563 in which the sole issue was identification. In concluding not to add any weight to the complainant's identification of V.V. as the person who assaulted him, Kenkle, J. stated "While it is understandable that the young witnesses thought Facebook might assist in identifying the attackers, it's unfortunate that they did not contact the police first and leave the investigation to them. The police are specifically trained to preserve the original value of identification evidence."

[2]

[3] R. v. Miapanoose, (1996) 110 C.C.C. (3d) 445 (O.C.A.) p.4

[4] R. v. Miapanoose, ibid p. 5 (see also Kent Roach, "Unreliable Evidence and Wrongful Convictions: The Case for Excluding Tainted Identification Evidence and Jailhouse Coerced Confessions" Criminal Law Quarterly [Vol.52 2007] where Mr. Roach argues that the experience of wrongful convictions ought to encourage the Court to rethink its reluctance to exclude some tainted identification evidence.)

[5] See for example R. v. T.A.H. [2012] B.C.J. No. 2374 where the victims went on line after a robbery and searched Facebook pictures, believed they recognized the perpetrator as the accused, and then reported the matter to police. The BCCA upheld the conviction and held that the trial judge's decision regarding the use of Facebook to be appropriate.

[6] R. v. M.T. [2013] O.J. No. 891 para. 44 (E.B. Murray J. citing R. v. Miapanoose, supra