A number of recent South Australian Bills  have proposed changes to evidence law that would allow idenitity evidence to be admitted to court when it has been obtained other than through a live line-up. Adelaide Law School’s Kellie Toole considers whether the proposed changes balance the imperatives of ensuring the defendant’s right to a fair trial and protecting the community from criminal offenders.

The accepted wisdom in Australian law for over 30 years has been that the best way to identify criminal offenders is through live identity parades,[1] where a witness to a crime picks the offender from a ‘line-up’ of 7 or 8 people who resemble the suspect.

The live line-up is considered so important to a defendant’s right to a fair trial that ‘identity evidence’ obtained by other means can be interpreted as a breach of that fundamental right and excluded from court.

It is, therefore, cause for concern that currently each major political party in South Australia has an Evidence (Identification) Amendment Bill before the Legislative Assembly proposing to amend the Evidence Act 1929 (SA) so that identity evidence can be admitted to court when it has been obtained other than through a live line-up.

The strict approach to the admission of identity evidence is because mistaken identification is consistently found to be the main cause of wrongful conviction of criminal defendants.[2] Eyewitnesses are often confident in their identification of the defendant, and juries can be convinced of the guilt of the defendant because of the eyewitness testimony.

The problem with convicting on the basis of identity evidence is that many confident and honest witnesses are simply wrong, because their observation was impaired, or their memory has deteriorated over time or been corrupted through images or commentary about the defendant in the media between the offence and the trial.[3]

The attempt to move away from live identity parades is understandable, given that suspects may simply refuse to participate in a line-up, and, if they agree, it can take up to 60 police hours to organise the parade and be intimidating to a witness to identify the offender when they know he or she is just the other side of a one-way mirror.

By contrast, photo boards are far more cost effective than line-ups, can be administered much more quickly, and the suspect and victim do not have to be in the same location.

There is also growing legal and psychological opinion that photographic identification is at least as reliable as line-up identification,[4] so the use of photo boards is not necessarily unfair to the defendant at trial.

The problem with the current Bills is not the simple move away from live line-ups. The problem is that both proposals are locked in a narrow and outdated debate between live and still photographic identity procedures. They ignore developments in both technology and understanding of how to conduct identity procedures that are fair to defendants, protect the safety of victims, reliably identify criminals, and ensure that identity evidence is admissible.

In the United Kingdom, there is growing use of Video Identification Parade Electronic Recording, which combines the convenience of photo board identification with more animated and lifelike images. There is preliminary evidence that this process produces more positive identifications than live parades, with more reliability and no discernable disadvantages.[5]

Certain states in the United States, in particular, have researched and implemented procedures that optimise the reliability of identification evidence.

These procedures include using three-dimensional computer-generated photo selection processes, using sequential presentation (one photo at a time), allowing photos to be viewed only once, video-recording the selection processes, specifying a minimum number of participants in the identification process, requiring maximum similarity to the suspect, excluding the investigating officer from the identification processes, ensuring the officer administering the identification process does not know the identity of the suspect, and allowing a suspect’s lawyer to attend the identification process.[6]

When the current SA debate began in 2011 with the Government introducing the Evidence (Identification) Amendment Bill 2011 (No. 95), the only protections for defendants were requirements that judges inform juries of the need for caution in accepting identification evidence, and of the reasons for the need for caution. The Bill was defeated because of concerns regarding the lack of safeguards on the reliability of the identification evidence, and a perception that such safeguards were being sacrificed in order to save police resources.

The following year, the Shadow Attorney General introduced the Evidence (Identification) Amendment Bill 2012 (No. 91), also supporting the overturning of the judicial preference for live line-ups and advocating the use of photo boards.

This Bill proposes that identity evidence be inadmissible if it was not collected in accordance with standards set out in Regulations, which is an improvement on the 2011 Government Bill. However, it rests on the promise of monitoring identity procedures through Regulations, but seeks the passing of the Bill without even a hint on the content of the Regulations.

In a baffling move in February this year, the Legislative Council received from the Government the Evidence (Identification) Amendment Bill 2012 (No. 116), which was identical to the one that was defeated in 2011 because of concerns about the undermining of the defendant’s rights.

Despite considerable research and consultation on both Bills, the Parliament has not been provided with the opportunity to pass a law that reflects international best practice in evidence law. Unless a subsequent Bill addresses the issues of appropriate technology and safeguards to ensure identity evidence is collected fairly and can be effectively challenged by a defendant, South Australian law will contain the paradox that its identification procedures have the potential to threaten the right to a fair trial in many criminal matters while also failing the community by not identifying as many criminals as possible.

 Kellie Toole is an Associate Lecturer at the University of Adelaide Law School.