An Examination of Criminal Jury Directions in Relation to Eyewitness Identification In Commonwealth Jurisdictions

Common Law World Review, Vol. 36, No. 4, pp. 303-336, 2007

34 Pages Posted: 11 Feb 2010

See all articles by Michael C. Bromby

Michael C. Bromby

Truman Bodden Law School; Glasgow Caledonian University

Moira MacMillan

Glasgow Caledonian University

Patricia McKellar

affiliation not provided to SSRN

Date Written: December 1, 2007

Abstract

This paper presents an analytical review of judicial directions to guard against wrongful convictions based upon erroneous eyewitness identification evidence. Factors known as the Turnbull Rules, derived from the English case R v. Turnbull, are of significance within many common law jurisdictions when considering the accuracy of eyewitness identifications and the practice of jury directions or mandatory warnings. The influence of these rules, together with variations in the approach taken by Commonwealth jurisdictions, illustrates that while the factors identified in Turnbull are to be found in the approaches adopted across the various jurisdictions studied, there is diversity in terms of whether or not such directions are mandatory and also as to their form and scope.

The frailties of eyewitness evidence are of primary concern to any reliable prosecution and exist irrespective of jurisdiction. Eyewitness identification can be central to many trials and illustrates that while the factors identified in Turnbull are to be found in the approaches adopted across the various jurisdictions studied, there is diversity in terms of whether or not such directions are mandatory and also as to their form and scope. Such evidence has been the subject of psychological evaluation and the findings of such studies cross national, ethnic and jurisdictional boundaries. These findings, and the processes employed to test such evidence, can be used to develop the form which directions to a jury may take. The requirement for a jury direction and the scope of such a warning are two matters where there are differences between the approaches taken by individual Commonwealth legal systems. While approaches differ according to jurisdiction, generally either legislation and/or case law will provide guidance to judges in terms of formulating a sufficiently robust warning. It is suggested that this wide variation in practice is incompatible with the universal theory of honest, yet mistaken, eyewitnesses. However, any approach which is adopted must also seek to prevent the balance tipping so far in favour of the accused that a jury discounts the evidence of the honest and accurate eyewitness. This paper will examine the approach to eyewitness identification evidence adopted in several Commonwealth nations and evaluate the influence of the English Turnbull case within these jurisdictions. A universal paradigm will be suggested, which would require directions to be given to juries in all cases which involve eyewitness evidence. Such a direction would incorporate a common framework which the judge would then tailor as required to take account of the circumstances of each particular case.

Keywords: identification, jury, jury direction, commonwealth

Suggested Citation

Bromby, Michael C. and MacMillan, Moira and McKellar, Patricia, An Examination of Criminal Jury Directions in Relation to Eyewitness Identification In Commonwealth Jurisdictions (December 1, 2007). Common Law World Review, Vol. 36, No. 4, pp. 303-336, 2007, Available at SSRN: https://ssrn.com/abstract=1550728

Michael C. Bromby (Contact Author)

Truman Bodden Law School ( email )

PO Box 1568
Grand Cayman, KY1-1110
Cayman Islands

HOME PAGE: http://www.bromby.vze.com

Glasgow Caledonian University

Scotland
United Kingdom

Moira MacMillan

Glasgow Caledonian University ( email )

City Campus
Cowcaddens Road
Glasgow G4 0BA, Scotland
United Kingdom

Patricia McKellar

affiliation not provided to SSRN ( email )

No Address Available

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