Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures

27 Pages Posted: 17 Apr 2008


This paper sets out the normative basis of a claim to procedural rights concerning the fair use of eyewitness identification procedures. It is argued that there are two aspects to suspects' procedural rights. The first aims to secure an opportunity for the suspect to participate in procedures where doing so might result in exculpatory evidence (a participatory right). The second is the state's obligation to take reasonable measures to prevent wrongful conviction on the basis of mistaken identification by providing the suspect with a satisfactory degree of procedural accuracy (a protective right). This normative analysis provides the basis of a claim that Article 6 of the European Convention on Human Rights provides a suspect with similar rights. The final part of the paper considers whether domestic procedure is compatible with these putative rights, and whether it could be said to provide an effective remedy if they were to be breached.

Suggested Citation

Roberts, Andrew J., Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures. Modern Law Review, Vol. 71, Issue 3, pp. 331-357, May 2008, Available at SSRN: or

Andrew J. Roberts (Contact Author)

Melbourne Law School ( email )

185 Pelham Street
Victoria, 3052

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