Overhaul of eyewitness identification laws needed to 'mitigate harm' - Commissioner
An overhaul of New Zealand's eyewitness identification laws is needed to "mitigate harm", Criminal Cases Review Commissioner says.
The Criminal Cases Review Commission is recommending changes to New Zealand's eyewitness identification laws, which are one of the known causes of miscarriages of justice.
A report by the Commission suggests aligning legislation with international best practice and improving the reliability of eyewitness identification evidence used in criminal proceedings.
Along with re-examining cases where there might have been a miscarriage of justice, the Commission also has a role to assess systemic issues that could be causing wrongful convictions.
The Chief Commissioner has said nearly one-fifth of the review applications raised issues relating to eyewitness identification.
Criminal Cases Review Commissioner Tracey McIntosh, who is also a Professor of Indigenous Studies at Auckland University, told Nine to Noon eyewitness evidence was highly persuasive, but humans were not recording devices.
Eyewitness evidence was powerful, but also potentially dangerous within a justice system, she said.
McIntosh said human memory can be "influenced by later information, our own expectations and assumptions".
"So this recalls the need for strong procedures to mitigate harm."
The recommendations
The final report makes three recommendations to strengthen New Zealand's legislative safeguards for eyewitness identification evidence.
- strengthening the legal requirements for formal eyewitness identification procedures
- expanding the definition of visual identification evidence
- clarifying when formal identification procedures may be dispensed with
McIntosh said the Commission was looking for further requirements for formal identification procedures including those who administer formal identification procedures not knowing who the suspect was.
As well as the use of video recording to capture behaviour, body language and confidence, which she said could change between the initial interview and the trial.
She said the first recommendation was aimed at "modernising formal identification procedures".
The second recommendation - expanding the definition of visual identification evidence - aimed to "close the gap" and "clarify the law".
While the third recommendation looked to clarify when it was okay to not follow formal identification procedures.
Section 45(2) of the Evidence Act says visual identification evidence obtained without following a formal procedure may still be admissible if there is "good reason" for not having followed the procedure, or the prosecution can nevertheless prove that the circumstances in which the identification was made have produced a reliable identification.
The Commission looks to clarify and list the "good reasons" for not following formal identification procedures, McIntosh said.
End of line-ups?
McIntosh said in-person line-ups had already largely been replaced in New Zealand.
"They are used very very rarely now... largely they have been replaced, in New Zealand particularly, they have been replaced and for some time with photo layouts, photo montages and they sorts of elements.
"We do have technologies available now that really can again strengthen these sorts of processes," she said.