Honest but Mistaken Eyewitness Identification: Useful or Unscrupulous?
The honest but mistaken identification of a person as a criminal has been proven to pose a notable risk in causing wrongful convictions. The Supreme Court of Canada has described the unique danger of eyewitness identification in being “that it is deceptively credible, largely because it is honest and sincere.”  Dr. Elizabeth Loftus, a cognitive psychologist specialized in eyewitness memory, has gone so far as to say that “all the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”  Indeed, an evaluation performed by the Innocence Project found that of the first 225 people wrongfully convicted in the United States, seventy-seven percent were convicted based on erroneous eyewitness identification.  The unfortunate truth is that erroneous eyewitness identification is the most common factor leading to wrongful convictions. 
Despite the frailties of eyewitness identification, Canadian courts have been reluctant to allow the use of expert opinion evidence on the subject. This is in direct contradiction to The Inquiry Regarding Thomas Sophonow, where Peter deCarteret Cory, former Canadian Supreme Court Justice, stated that:
Further, I would recommend that judges consider favourably and readily admit properly qualified expert evidence pertaining to eyewitness identification. This is certainly not junk science. Careful studies have been made with regard to memory and its effect upon eyewitness identification. Jurors would benefit from the studies and learning of experts in this field. Meticulous studies of human memory and eyewitness identification have been conducted. The empirical evidence has been compiled. The tragic consequences of mistaken eyewitness identification in cases have been chronicled and jurors and Trial Judges should have the benefit of expert evidence on this important subject. The expert witness can explain the process of memory and its frailties and dispel myths, such as that which assesses the accuracy of identification by the certainty of a witness. The testimony of an expert in this field would be helpful to the triers of fact and assist in providing a fair trial. 
Nevertheless, a history of the jurisprudence highlights how courts have been cautious in allowing the use of expert opinion evidence on eyewitness identification. In doing so, courts have applied the test laid out by the Supreme Court’s 1994 decision in R v Mohan, which requires that expert opinion evidence be relevant, necessary in assisting the trier of fact, not restricted by any exclusionary rule of evidence, and make use of a properly qualified expert.  A discretionary application of this criteria has led to the exclusion of expert opinion evidence on eyewitness identification in most cases. In 1997, the Ontario Court of Appeal found such evidence inadmissible in R v McIntosh.  In 2002, the Manitoba Court of Queen’s Bench found such evidence inadmissible in R v Sheppard.  In 2003, the Ontario Superior Court of Justice found such evidence inadmissible in R v Myrie.  In 2009, the Manitoba Court of Appeal found such evidence inadmissible in R v Woodard.  Most recently, in 2013, the Ontario Court of Appeal again found such evidence inadmissible in R v Frimpong. 
In fact, the only written decision where such evidence has been allowed is the Manitoba Court of Queen’s Bench 2009 decision in R v Henderson.  In doing so, Justice Sinclair remarked that “it is interesting that we as judges feel we can give judicial direction to juries without input from experts in the field.”  On appeal, however, Justice Chartier, as he then was, held that the frailties of eyewitness identification are better addressed through strong jury instructions and that “judges can remind just as well as experts.” 
In excluding such evidence, Canadian courts have consistently held that the frailties of eyewitness identification are mostly common knowledge and that since expert opinion evidence on the subject risks usurping the role of the trier of fact, proper jury instructions are a favourable alternative to the use of such evidence. But no court has gone so far as to restrict the use of such evidence in all cases.
Both the use of strong jury instructions and the use of expert opinion evidence to explain the frailties of eyewitness identification have benefits and risks. While an eyewitness memory expert is better positioned to explain the topic of their respective expertise than a judge, there is a risk that jurors would simply defer to an expert’s opinion about the accuracy of a specific identification instead of forming their own. This risk was well articulated by the Supreme Court in R v D (D), where the concurring opinion highlighted the fact that when “faced with an expert’s impressive credentials and mastery of scientific jargon, jurors are more likely to abdicate their role as fact-finders and simply attorn to the opinion of the expert in their desire to reach a just result.”  On the other hand, although judges are more likely to be impartial and non-partisan while instructing a jury, it is unlikely that they will explain the frailties of eyewitness identification as well as an expert. Indeed, many appeals have been allowed based wholly or in part because judges have failed to give juries adequate instructions about the frailties of eyewitness identification. 
It is certainly true that reasonable people can come to very different conclusions about the best way for courts to address the frailties of eyewitness identification. But perhaps the framework in R v Henderson can offer a promising and fair middle ground. In deciding to allow expert opinion evidence on eyewitness identification, Justice Sinclair placed certain restrictions on the expert testimony to prevent it from usurping the trier of fact: the expert could not comment on the correctness or reliability of any witness, statement, or piece of evidence; and the expert’s evidence was strictly limited to general comments and hypothetical questions.  If these or similar procedures were adopted by courts, the threat of an expert opinion on eyewitness identification usurping the trier of fact would appear to be largely neutralized. Thus, by effectively restricting an expert to the role of a teacher, jurors would be equipped with the scientific knowledge to properly assess the facts of a case without being told how to specifically weigh them. Since an expert would be unable to express their own opinion on the reliability of any individual eyewitness, jurors would be unable to defer to the expert’s opinion and would still be required to form their own. This option has the compelling advantage of giving jurors the best education available about the frailties of eyewitness identification without running the risk of an expert usurping their role as the trier of fact. Presented in this way, such evidence coupled with proper jury instructions would leave jurors very well equipped to properly assess the merits of an eyewitness identification. With respect, considering the notable risk that erroneous eyewitness identification poses in causing wrongful convictions, should courts not take every reasonable precaution available to mitigate that risk?
 R v Hibbert, 2002 SCC 39 at para 50 [Hibbert].
 Elizabeth F Loftus, Eyewitness Testimony (Cambridge: Harvard University Press, 1979) at 19.
 Lauren O’Neill Shermer, Karen C Rose & Ashley Hoffman, “Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony” (2011) 27 J of Contemporary Crim Justice 183 at 183, 185.
 Bruce MacFarlane, “Convicting the Innocent: A Triple Failure of the Justice System” (2006) 31:3 Man LJ 403 at 443.
 Manitoba Justice, The Inquiry Regarding Thomas Sophonow (Winnipeg: Manitoba Justice, 2001) at 69, online: <digitalcollection.gov.mb.ca/awweb/pdfopener?smd=1&did=12713&md=1> [perma.cc/ZVZ9-A8H3].
 R v Mohan,  2 SCR 9 at paras 17-21, 114 DLR (4th) 419.
 R v McIntosh, 35 OR (3d) 97, 102 OAC 210.
 R v Sheppard, 2002 MBQB 99.
 R v Myrie,  OJ No 1030, 57 WCB (2d) 72.
 R v Woodard, 2009 MBCA 42.
 R v Frimpong, 2013 ONCA 243.
 R v Henderson, 2009 MBQB 101 [Henderson MBQB].
 Ibid at para 52.
 R v Henderson, 2012 MBCA 93 at paras 109-110.
 R v D (D), 2000 SCC 43 at para 53.
 Hibbert, supra note 1 at paras 1-76; R v Hay, 2013 SCC 61 at paras 79-102; R v Francis, 55 WCB (2d) 454, 165 OAC 131; R v Jack, 2013 ONCA 80; R v Yigzaw, 2013 ONCA 547; R v Virgo, 2016 ONCA 792; R v Lewis, 2018 ONCA 351; R v Phillips, 2018 ONCA 651.
 Henderson MBQB, supra note 12 at para 55.