Identification evidence (Zimbabwe)

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Visual identification of persons

Human observation is very fallible and experience has shown that genuine errors can easily be made by witnesses who have identified culprits. In a number of cases in Britain and elsewhere it was later clearly established that the accused were wrongly convicted on the basis of mistaken identification evidence.

Whenever the State case depends wholly or mainly on evidence of visual identification, the courts are supposed to exercise special caution, especially if there is only a single witness who has made the visual identification. Even if the court decides that the witness is entirely honest and truthful in his testimony and he has asserted that he is completely certain that he has identified the correct person as the culprit, it must nonetheless ask itself whether there is a danger that the witness was mistaken: Mutters & Anor S-66-89 and Makoni & Ors S-67-89.

Defence counsel must particularly guard against the prosecutor asking leading questions in relation to identification. Defence counsel should be quick to object to any such questions.

Ordinary members of the public are not trained in accurate observation in the way policemen should be. The ability of different people to observe carefully and recollect later varies widely. Memories fade over time; accurate identification long after the event is difficult.

The defence lawyer who is cross-examining a State witness who is claiming that he saw the accused commit the crime must minutely probe the circumstances in which the identification was made. Questions which should be asked of the eye witness include these:

  • For what amount of time did the witness have the accused under observation?
  • What was the distance between the witness and the accused at the time of observation?
  • What were the lighting conditions at the time?
  • Were there were any objects in the way which would have prevented or obscured observation?
  • Does the witness have good or poor eyesight? Does he wear glasses and did he have them on at the time?
  • Did the witness see clearly the accused's face or only the rest of his body?
  • Had the witness known the accused previously and, if he had, how well had he known him;
  • If the accused has no distinctive facial or other features, how can the witness be certain of the identification?
  • Whether the person identified belonged to a different ethnic group to the witness because if he did there may be doubt that the witness was able to distinguish accurately between different persons in that other ethnic group.

See Mutters & Anor S-66-89.

In Nkomo & Anor 1989 (3) ZLR 117 (S) it was stated that broadly speaking, good identification does not need corroboration or support, but poor identification does. Examples of good identification include cases where the witness has observed the accused over a lengthy period or many times or where the accused was well-known to the witness. The identification will be unreliable if, for instance, the witness caught only a fleeting glimpse of a person from a considerable distance in poor light. The identification in these circumstances would be dubious, whether or not the person was a person he had known previously. On the other hand, close range observation for a reasonable period of time in good lighting conditions where the witness clearly saw and carefully studied the person's facial features will be far more reliable, particularly if the person was well known to the witness or had some very distinctive features which made him easy to identify.

The bald assertion by the witness that he is certain that he has identified the right person should not be accepted at face value. The objective basis of his identification must be properly probed. Witnesses should be asked by what features they made their identification. The witness should be questioned as to the height, build, complexion and apparel of the person observed. Where the accused is undefended, the court should carefully examine the circumstances of the identification and test its reliability.

Identification is obviously stronger if several witnesses independently identify the accused.

In Madziwa S-191-90 it was pointed out that weak evidence of identification is not made any more reliable by the mere fact that appellant was in the vicinity at the time and lied about this fact, as even an innocent person can lie out a sense of panic.

To sum up, as identification evidence can be very unreliable, the defence lawyer must carefully probe the details of the identification and highlight all factors which would make the identification unreliable in the circumstances.

Identification in court

In Mutsinziri 1997 (1) ZLR 6 (H) the court pointed out that a "dock identification", where a witness is asked whether the person in the dock is the offender, suffers from considerable disadvantages. Everything about the atmosphere of the court proceedings points to the accused, and to him alone, as the person who is to be identified by the witness. These circumstances are inevitable unless one insists that any dock identification take the form of an identity parade. The manner in which a dock identification is elicited from witnesses by the prosecutor can be done the right way or the wrong way. The wrong way is one which makes it virtually impossible for the witness to say anything other than that the accused is the culprit. This way constitutes an irregularity. The better way is to get the witness to recount all the events without reference to the accused in the dock, and only when the witness has said all he has to say about the events should he be asked whether any person in the court is recognised. This form of identification still carries the defective feature of a dock identification, that the accused is obviously the person who is suspected of committing the offence, but it avoids leading questions and putting the identification into the witness's mouth.

In the South African case of Maradu 1994 (2) SACR 410 (W) the court held that the danger of a dock identification is the same as that created by a leading question in examination-in-chief: it suggests the answer desired. As the latter type of question is inadmissible, there is no reason why a dock identification should also not be inadmissible, save in special circumstances. (The court found that the witness's dock identification of the appellant was unreliable for a number of reasons.)

Identification from photographs

The police may sometimes ask a witness who saw the crime being committed to examine a set of photographs to see if the witness can pick out the culprit. The reliability of such an identification depends, firstly, upon whether the witness was able accurately to observe the face of the culprit at the time of the crime and to recall it accurately subsequently. Secondly, it depends upon whether the exercise to select the culprit from photographs was fairly conducted. The courts have said that for the identification process to be fair:

  • The witness should be asked to look at a reasonable number of photographs and should not be shown only one photograph and asked whether this is the culprit;
  • The names of the persons photographed should not be on the photographs and the photograph of a person whom the police already suspect should not be ringed or specially marked and that photograph should not be of an entirely different size from all the others;
  • The police should allow the witness to make his own independent selection and should not prompt the witness in the direction of selecting one particular photograph;
  • Only photographs of reasonable quality should be shown because there is an increased danger of wrong identification from poor quality photographs.
  • The identification process will not, however, be vitiated simply because the witness sees a label on cover of the album indicating that the photographs in the album are of persons convicted of crimes similar to those for which the culprit is presently being sought.

The State may want to produce the album to show that the identification process was a fair one and that the witness was asked to go through a large number of photographs. Because of the way in which the album is labelled its production to the court may have the effect of revealing that the accused has at least one previous conviction for the crime. If this is the case it cannot be produced because this would be prejudicial to the accused. Defence counsel can ask to see the album in advance of the trial in order to decide whether to ask for its production during the trial.

If, however, the defence alleges that the process was unfairly conducted, then the State is at liberty to produce the album to prove the fairness of the process. See 1978 Criminal Law Review 343.

See Nkomo & Anor 1989 (3) ZLR 117(S).

The courts have said that if the police intend to proceed on the basis of identification evidence, it is best to hold an identification parade to see whether the witness will pick out the same person originally identified from photographs: Nkomo 1989(3) ZLR 117(S).

If no such identification parade was held the defence lawyer should ask why it was not held.

The State is supposed always to disclose if the witness previously identified the culprit from police photograph, because this will have a bearing on the reliability of the witness' subsequent identification of the culprit at a parade or in court: Ndlovu S-3-88.

In Mutsinziri 1997 (1) ZLR 6 (H) the court said that where identity is in issue and X is identified by means of a photograph of him in the possession of the police, it is not inevitable in all cases that the witness would thereby conclude that X is known to the police and has a known or suspected criminal record. The police may come by photographs of the suspect in perfectly innocent circumstances and it is not necessarily harmful to X, where a policeman does no more than say that he was able to identify the accused from a photograph or to say that he tried to locate X by distributing photographs.

Summary

The reliability of evidence of identification from photographs can be attacked either on the basis that the witness' identification is unreliable or on the basis that the photographic identification exercise was unfairly conducted.

Identity parades

To produce reliable evidence an identification parade must be carried out fairly. They must be carefully carried out to obviate errors. These are the basic requirements for a fair parade:

  • It must be conducted by an officer who has had nothing to do with the investigations into the case;
  • The officer conducting the parade should not call the witness to the parade;
  • A sufficient number of persons, say ten, should form the parade;
  • The persons on the parade must be approximately the same build, height and complexion and they should all wear clothing similar to one another's and, preferably, similar to that worn when the crime was committed;
  • The accused must be allowed to choose his own position at the parade and must not be forced by the police to stand in a particular place;
  • The witness must not have been allowed to see the prisoner and have been told he is the suspect between the time of the arrest and the time of the parade;
  • The witness must be kept some place where he cannot see the prisoner being guarded by police officers or the parade being assembled.
  • The witness should not be told that the suspect is on the parade but should only be asked if the person he saw commit that crime is on the parade;
  • The witness must be left to pick out the person he saw commit the crime, if he can, without out any form of assistance or prompting;
  • The police should not attempt to point out or suggest someone either before or during the parade. Especially where the suspect is a person who had previous convictions, the police must not show the witness a photograph of the suspect before the witness is called upon to see if he can pick the suspect out from the identity parade. (It is a worthwhile safeguard for the defence lawyer to ask the witness under cross examination whether he was shown any photographs before he attended the identity parade);
  • If there is more than one witness, the witnesses who have already made their identification should not be allowed to confer with those who have not. They must not be returned to the same room.

See Ndhlovu & Ors 1985 (2) ZLR 261 (S).

It is also important that the identification parade be held as soon after the commission of the crime as possible to avoid memory impairment occurring with the passage of time: Mavunga 1982 (1) ZLR 63 (S).

Summary

The defence lawyer should probe the reliability of the evidence derived from identification of a suspect at an identification parade. He should find out about how the parade was conducted.

Fingerprints and handprints

Where the State case rests exclusively or substantially on evidence that the prints found at the scene of the crime matched those taken from the accused, an expert must testify as to the basis upon which he reached his conclusion that the prints belonged to one and the same person.

In Mutsinziri 1997 (1) ZLR 6 (H) the court said that where fingerprint evidence is given by an expert, the court ought not insist on its own ability to make a fingerprint identification by study of a comparison chart between the latent print (that found at the scene) and the inked print (that recorded from the suspect). Nevertheless, the court is still faced with a decision as to whether or not to accept the expert's evidence when he purports to find sufficient points of identity between the latent and the inked print. The court must take into account the witness's experience and the apparent weight and reliability of his opinion. The court may, if it considers it necessary, insist on a study of the comparison chart; and where the court is in a position to make its own examination of the comparison, it may, to the extent which it considers proper, attempt of its own accord to confirm the validity of the expert's opinion. In an appropriate case it may depart from the expert's opinion, if it is unable to find on the chart the points of similarity which so impressed the expert.

Footprints and shoeprints

When dealing with the issue of identification, it is permissible for the court to rely on evidence relating to bare footprints (spoor, as opposed to footprints taken by the police). However, a number of precautions have to be observed before such evidence can be accepted. It is certainly not enough for a witness to make a bald assertion that the footprints were those of the accused, even if he says he had lived together with the accused in the same area for some time and he knew those prints well. The witness must be asked by what characteristics or peculiarities, marks or indications he recognised the footprints as being those of the accused. The ability to give a precise and detailed description and point to features of unique distinction will point in the direction of reliable identification.

In cases in which the identity of the footprints of the suspect forms a vital part of the State case, the police should, wherever possible, take a cast or other impression of the footprint at the scene of the crime and a comparative footprint from the accused. These should then be produced in court as exhibits so that comparisons can be made.

In respect of bare footprints, an expert in handprints may also have the expertise to conduct an expert comparison between the two sets of footprints.

Reliance on shoeprints is obviously fraught with considerable danger, especially where the shoeprint is from a type of footwear which is in widespread use: Mavunga 1982 (1) ZLR 63 (S).

Tyre marks and tool marks

Casts and photographic evidence should be produced and a scientific expert must testify as to the common features.

Voice identification

There is obviously substantial risk of error if identification is made on the basis of testimony that the voice of the suspect is the same as that of the culprit. This sort of evidence would need to be probed extremely carefully. The court should approach it in the same sort of way as it does visual identification evidence. Questions such as the following must be put to the witness:

  • What was there about the voice heard which made the witness sure that it was a particular person's voice?
  • Did the voice have a timbre or quality that set it apart from the voice of others and, if so, what was this quality?
  • Was the speaker speaking with a distinctive accent or did he have some sort of speech impediment?
  • Were the words spoken when the crime was committed spoken in a soft or loud voice and for how long did the culprit speak?
  • How good is the witness's hearing?
  • Were there other background noises at the time which would have made it difficult to hear the voice properly?
  • Did the witness know the accused previously and was he familiar with his voice?
  • In what language were the words spoken?

See Chitake 1966 RLR 251 (A); 1966 (2) SA 690 (RA).

Matching of blood, DNA, bodily secretions and hair fibres

Expert medical and scientific evidence is obviously required and non-expert evidence should not be accepted.

In Jesse v AG & Ors 1994 (2) ZLR 416 (H) the court pointed out that blood samples are valuable aids to criminal investigation. However, in terms of s 45(3) of CPEA the process of extracting a blood sample can only be instituted by the submission, by a police officer of or above the rank of superintendent, of a written request to a medical practitioner. The test had to be performed by a medical practitioner; the police were expressly excluded from doing so. The suspect has the right to be informed of who was to take the sample, where and when it was to be done and the purpose for which it was required. Where the taking of a blood sample is lawful, then reasonable force could be used to obtain it. The police can thus use reasonable force to compel a suspect to submit to the taking. Only the officials mentioned in s 45(3) are authorised to take blood sample, although they could delegate their duties to other persons. The accused cannot insist that other persons take the sample.

Identification of property

When assessing the reliability of a person's identification of property, the court does not look at each feature or point of identification in isolation but has regard to the cumulative effect of the various features by which the person has identified the property: Nyamaro & Anor 1987 (2) ZLR 222 (S).


See Zimbabwe Criminal Defense Manual