Identification evidence

Identification evidence is used by the prosecution in a criminal trial to identify the person who is alleged to have committed a crime. There are different types of identification evidence, including visual identification evidence, fingerprint evidence and DNA evidence.

Visual identification evidence is when an eyewitness identifies a suspect from memory. It can sometimes be unreliable for a number of reasons:

• Poor lighting conditions, bad weather or the distance between the witness and the person when they saw them
• The witness’s eye-sight, which may be in question
• The witness may have been in shock when they saw the person, or may have only seen them briefly
• A person’s memory may be unreliable

Other types of identification evidence such as fingerprint evidence and DNA evidence are considered more reliable.

The court must give the jury a warning about the dangers of accepting visual identification evidence to ensure that they don’t incorrectly interpret this evidence. This warning is a cautionary instruction and must state:

• That honest witnesses with an opportunity for good observation have often made incorrect identifications
• That the jury must carefully examine the identification evidence in light of all the circumstances
• The need for particular caution
• That the jury must be satisfied beyond all reasonable doubt that the identification was correct

Photographs

At the early stages of an investigation, the Gardaí will often show photographs of suspects to a witness. Before doing this, they should get a detailed description of the suspect from the witness. This can show how strong the witness’s memory of the offender is, before they are shown photographs. The witness should be shown photographs of many possible suspects.

If a witness identifies a suspect using photographs and the prosecution wants to put this evidence to the jury, the defence counsel can challenge this with the judge in the absence of the jury. For example, if the photograph shown to the witness came from Garda files, the jury would realise that the suspect had been photographed by the Gardaí on a previous occasion and this could prejudice the jury. The judge will decide whether this evidence should be put to the jury.

Photofits and identikits

A photofit or an identikit picture is a sketch of someone’s face, which is made using descriptions given by people who have witnessed a crime. The Gardaí use these pictures in criminal investigations to help them identify potential suspects. They are not really used in criminal trials as they are not considered to be real evidence, unlike a photograph or video. This means that they would not be valued as identification evidence in court.

If the Gardaí have already identified a suspect, they should not show the witness photographs of the suspect, but should have an identification parade (ID parade). This is because if the witness has already seen a photograph of the suspect, it may affect their judgement at the ID parade. If the suspect is shown photographs before the ID parade, the judge will warn the jury at the end of the trial that the ID parade is suspect evidence because the witness had already seen a photograph of the suspect.

ID parades depend on the suspect’s co-operation. If a suspect refuses to participate, the Gardaí can get identification by informal means (for example, where a witness points out the suspect on the street). However, informal identification may not be admitted as evidence in certain situations.

A formal ID parade is much more reliable than informal identification because it is a controlled process and the suspect’s solicitor can attend to ensure that the process is carried out correctly.

Rules for ID parades

While ID parades are frequently used by the Gardaí, the process is not provided for in law. However, there are a number of rules about ID parades, which have developed over time as a result of case law in Ireland.

ID parades should be conducted by a Garda officer who is not connected with the crime but who has been made familiar with the case and has been given information about the witness.

The witness should not see the accused being arrested or taken from custody to the ID parade room.

If several witnesses are needed to identify the suspect, they should be kept apart before and after the parade, to minimise the chances for them to consult with each other about the ID parade.

The witness should be asked to identify the suspect from a line of 8 to 12 people. These people should be chosen because they look similar to the suspect.

When the volunteers in the ID parade have been arranged in a line, the suspect should be asked if they have any objections to the composition or appearance of the parade.

When the parade is completed, the accused and their solicitor should be asked whether they have any comments to make about the parade. Details of the parade and any objections made by the accused or the solicitor must be recorded If a witness fails to identify the accused, the prosecution should disclose this fact to the defence.

Fingerprint evidence is an accepted form of identification, but it must be given by an expert witness (a fingerprint expert). In order to use fingerprint evidence, the Gardaí or prosecution must be able to match a fingerprint left by a culprit at the crime scene with that of fingerprints taken from the accused in a controlled situation (that is, taken in a Garda station).

In certain situations when you are detained after you are arrested you must provide the Gardaí with your fingerprints.

The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 gives the Gardaí the power to take certain DNA samples from people detained after arrest under:

• Section 30 of the Offences Against the State Act 1939
• Section 4 of the Criminal Justice Act 1984
• Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
• Section 50 of the Criminal Justice Act 2007
• Section 42 of the Criminal Justice Act 1999
• Section 16 or 17 of the Criminal Procedure Act 2010

The Gardaí take these samples to find out if the person was involved in committing a crime. This way of identifying suspects can also be used to eliminate suspects.

These samples can only be collected if it has been authorised by a garda not below the rank of Inspector. The garda must have reasonable grounds to believe that the person was involved in committing the offence they were arrested for, and that collecting the DNA evidence will prove or disprove their involvement.

DNA samples collected from people detained under the laws above can be used as evidence.

When DNA evidence is recovered from a crime scene, it is entered into the crime scene index in the DNA database. When DNA evidence is taken from someone in accordance with the 2014 Act, (for example, a suspect who has been arrested and detained under one of the laws above) it is entered into the reference index on the database.

Protected persons

Children under the age of 14, and people who don’t have the capacity to understand the DNA testing process and cannot give consent are known as protected persons. The Gardaí must get consent from a protected person’s parent, guardian or the Court before taking a DNA sample from a protected person.

You should get legal advice for more detailed information on this.