An Examination of Criminal Jury Directio

An Examination of Criminal
Jury Directions in Relation to

Eyewitness Identification in
Commonwealth Jurisdictions
Michael Bromby,* Moira MacMillan, and
Patricia McKellar
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,1 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
Research Fellow, Joseph Bell Centre, Glasgow Caledonian University.

Senior Lecturer, Division of Law, Glasgow Caledonian University.
UK Centre for Legal Education, University of Warwick.
[1977] QB 224; [1976] 3 All ER 549; (1977) 63 Cr App Rep 132.
303
COMMON LAW WORLD REVIEW
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.
I. Introduction
In this paper the principles underlying the cautioning of juries in
relation to eyewitness identification evidence are discussed. The assessment of eyewitnesses is not peculiar to one jurisdiction; a cautious
approach to such evidence has worldwide relevance. Challenges to
the credibility, reliability and cogency of eyewitnesses are an issue for
the judiciary in every jurisdiction. Many studies have been undertaken
by cognitive experimental psychologists,2 whose recommendations
have only occasionally been taken on board.3 During criminal investigations, the various methods of eyewitness identification employed
to identify a suspect may include: single confrontation; photographs
or video footage; or controlled line-ups. Witness recollection and the
ability of a witness to match a mental image of the offender to one of a
selection of possible suspects is a cognitive process that which may be
ameliorated or disrupted by investigations, as hypothesized by
Goldstein and Chance.4 Broadly speaking, the factors influencing the
process of recollection may be divided into two categoriesevent
characteristics and witness/offender characteristics.5 Event characteristics pertain to the scene of the identification and are always relevant in all cases. Witness/offender characteristics, however, vary
according to the abilities of individual persons. It will be shown that
these two categories are of significance when considering what
should be the most appropriate form of judicial direction to safeguard
against erroneous eyewitness evidence being accepted.
The prohibition of psychological, or indeed psychiatric, evidence in
relation to eyewitness identification has restricted the introduction of
many important studies and findings. The leading English case R v
2 For example, see G. Wells and E. Loftus (eds.), Eyewitness Testimony:
Psychological Perspectives (Cambridge: New York, 1984).
3 For example, see W. Wagenaar and N. Veefkind, Comparison of one-person and
many-person lineups: A warning against unsafe practices in F. Losel, D. Bender
and T. Bliesener (eds.), Psychology and law: International perspectives (de Gruyter:
Berlin, 1992) 275.
4 A. G. Goldstein and J. E. Chance, Visual Recognition Memory for Complex
Configurations (1970) 9(2B) Perception and Psychophysics 237.
5 For further discussion of these categories, see A. Kapardis, Psychology and the
Law (Cambridge University Press: Cambridge, 1997) 36.
304
EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS
Turner6 has limited the scope of admissibility and prevented the acceptance of expert testimony in this area and has influenced practice
elsewhere. It therefore falls to the jury, or the judicial fact-finder, to
evaluate eyewitness evidence without the assistance of expert testimony. This has been questioned by psychologists7 on a number of
levels, particularly in relation to how the memory works and the factors which may influence the accuracy of eyewitness evidence.
The development of judicial directions, instructions or warnings to
a jury in criminal trials arguably can provide a safeguard against
erroneous convictions based upon unreliable eyewitness evidence.
The content of such a warning, in terms of its scope or the form of
words used, will be discussed and a comparison made between several Commonwealth jurisdictions. In addition, the procedural issue of
whether such directions should be mandatory in all instances of eyewitness testimony, or solely when identification is wholly or in part
disputed, or left entirely to the discretion of the judge will be reviewed
in the light of appellate case law, law reform papers and psychological
studies.
It is arguable that the English Turnbull criteria for assessing eyewitnesses (which will be discussed below) are insufficient to warn
against the complexities of visual evidence. Moreover, because it is
insufficient in scope, the jury direction from Turnbull, as a mandatory
procedural tool, may undermine an otherwise robust prosecution
case. It is possible that either increasing the scope of the direction, or
providing a general framework for a warning which is then tailored to
the specifics of the case in question, would present a more effective
method for ensuring that a jury does not arrive at an unsafe verdict.
The scope and applicability of the Turnbull direction has been the
subject of discussion since 1976.8 The perennial problem of eyewitness evidence indicates that this issue has not yet been resolved in
the criminal courts. The broader issues of pre-trial procedures and the
use of expert witnesses are pertinent to the analysis of eyewitness
evidence but are beyond the scope of this article. Likewise, the
authors have restricted their review to several Commonwealth jurisdictions where English law may be expected to feature to a greater or
lesser extent, given the effect of the Statute of Westminster 1931 and
6 [1975] QB 834; [1975] 1 All ER 70; 60 Cr App Rep 80.

7 R. Schmechel, T. OToole, C. Easterly and E. Loftus, Beyond the Ken? Testing
Jurors Understanding of Eyewitness Reliability Evidence (2006) 46 Jurimetrics
177.
8 A brief Westlaw search for English citations to the case identified that Turnbull
has been applied in 23 appeal cases and considered in 35 appeal cases since 1976.
See also C. Wells, Corroboration of Evidence in Criminal Trials (1990) 140 NLJ
1031 and R. Munday, Exemplum Habemus: Reflections on the Judicial Studies
Boards Specimen Directions (2006) 70 J Crim L 1.
305
other similar provisions ensuring the legislative independence of imperial realms.
II. Review of the Development of Eyewitness

Identification Directions
i. England and Wales
Miscarriages of justice due to inaccurate eyewitness identifications
are not new. In England and Wales, the inquiries into the trial of Mr
Adolf Beck9 in 1904 and the arrest of Major R. O. Sheppard10 in 1925
acknowledged the erroneous identifications in those cases, but failed
to recognize the inherent weakness associated with all eyewitness
evidence. The Beck case led to the establishment of the Court of
Appeal in England and Wales. In R v Williams,11 counsel for the defence asked the court to give a general direction that where the only
evidence against an accused person was identification by one witness,
the jury should be warned that it would be dangerous to convict
without corroboration. The Lord Chief Justice, Lord Goddard, in
quashing the conviction due to mistaken eyewitness identification,
held that the Court of Criminal Appeal would lay down no hypothetical directions for a jury, as suggested by counsel.
By contrast, in 1962 in the Republic of Ireland, the Supreme Court
held that a general warning should be given, as juries in general
might not be fully aware of the dangers involved in visual identification: the case, People v Casey,12 is discussed in below. The House of
Lords subsequently considered the application of a generic warning,
as applied in the Republic, in Arthurs v Attorney-General for Northern
Ireland.13 The Court of Criminal Appeal for Northern Ireland had
initially dismissed the appeal but, following the actions of the Irish
Appeal Court in Casey, certified that the decision involved a point of
law of general public importance:
When in the court of a trial on indictment, a conviction appears to
depend wholly or substantially on the visual identification of the accused
by one or more than one witness, is it in law the duty of the presiding
judge to give a general warning to the jury of the dangers of acting on
such evidence?14
The appeal was dismissed by the Lords, primarily due to the evidence
of a police constable who knew the accused well and was therefore, in
the eyes of the court, able to make a reliable identification. Lord
9 Report of the Committee of Inquiry into the case of Mr Adolf Beck Cd 2315 (1904).
10 Report of the Tribunal of Inquiry on the arrest of Major R. O. Sheppard, DSO,
RAOC, Cmd 2497 (1925).
11 [1956] Crim LR 833.
12 The People (at the Suit of the Attorney General) v Casey (No. 2) [1963] IR 33; 1
Frewen 521.
13 [1970] 55 Cr App Rep 161.
14 Ibid. at 163.
306
Morris of Borth-y-Gest stated that though specific words such as

warning or danger may not be found in the summing-up, its
whole tenor and spirit was such as to call attention to the possibilities
of making a mistake in identification and of the need to be sure that no
such mistake was in fact made.15 He continued, obiter dicta:
I refer to cases where a witness has seen someone whom he does not in
any way know and has had over a period of time to carry in his minds
eye a recollection of the person and then is at some later date asked
(either at an identification parade or at some place) to say whether he
can recognise the person whom he previously saw. In such a situation it
is manifest that dangers may result from human fallibility. I would leave
for future consideration the question whether there is need to lay down
any rule for the guidance of courts in such cases . . . I consider, therefore, that it would be undesirable to seek to lay down as a rule of law
that a warning in some specific form or in some partly defined terms
must be given. A summing-up does not follow a stereotyped pattern. It
need contain no set form of words. Each case has its own features and a
summing-up must be related to those features and to the problems of
the particular case.16
Shortly afterwards, the Court of Appeal for England and Wales referred the following point of law to the House of Lords in R v Long:
When a conviction depends wholly or substantially upon the visual
identification of the accused by one or more witnesses to whom he had
previously been unknown and who only had an opportunity limited in
time to identify the alleged criminal at or about the time of the commission of the crime, is it in law the duty of the judge to warn the jury in
terms of the dangers of convicting upon such evidence?17
The House of Lords refused leave to appeal, thereby reaffirming the

principle that a formulated direction, such as the new rule derived
from Casey was not required. A warning may often be appropriate,
but the decision to do so, and the exact wording was left to the
discretion of the trial judge.
The Criminal Law Revision Committee, however, in its Eleventh
Report18 recommended that a statutory obligation be placed on the
trial judge to warn the jury of the special need for caution before
convicting the accused in reliance on the correctness of the identification. The committee had considered making an exception to this
recommendation in cases where the accused was known to the witness (such as Arthurs v Attorney-General19). However the committee
decided against such an exception as it was decided that there might
still be a danger of misidentification even where the accused is known
15
16
17
18
19
Ibid. at 168.
Ibid. at 169.
R v Long (1973) 57 Cr App Rep 871 at 879.
The Eleventh Report of the Criminal Law Revision Committee, Cmnd 4991 (1972).
Above n. 13.
307
to the witness.20 No action was taken on this recommendation of the

committee to implement a statutory warning.
In 1976, following several high profile cases of mistaken identity
and poorly conducted line-ups in England and Wales, the Devlin
Report21 provided a thorough analysis of identification evidence in
criminal proceedings. The report had been commissioned by the
Home Secretary to review all aspects of the law and procedure
relating to evidence of identification in criminal cases and to make
recommendations. An analysis of wrongful convictions due to misidentification in R v Virag22 and R v Dougherty23 formed a substantial
part of the report. In Virag, the accused was identified by 6 out of 12
witnesses at an identification parade. It emerged that, prior to the
identification parade, some of these witnesses had been shown photographs of the suspect by the police. This practice, which may influence the identification of suspects by witnesses, has been researched
and shown to cause errors.24
Subsequent chapters of the Devlin Report reviewed evidence and
pre-trial procedure (such as witness questioning); procedure at the
trial (dock identification and jury direction); and post-trial procedures
(appellate and Home Office review). One of the main recommendations was that, in England and Wales, eyewitness identification evidence alone should cease to be a basis for conviction.25 In addition, in
respect of eyewitness testimony, the judge should draw the jurys
attention to certain aspects of the identification during the summingup. It was recommended that the trial judge should be required by
statute . . . to direct the jury that it is not safe to convict upon eyewitness evidence unless the circumstances of the identification are
exceptional or the eyewitness evidence is supported by substantial
evidence of another sort.26 Such a statutory direction was never enacted. Although the committee did not wish to define the exceptional
circumstances in which a conviction could be secured on the basis of
eyewitness evidence, it did summarize the chief points, which in the
normal course of events, a summing-up might be expected to cover:
20 P. Devlin, Report to the Secretary of State for the Home Department of the
Departmental Committee on Evidence of Identification in Criminal Cases (HMSO,
1976) 4.52.
21 Above n. 20.
22 Unreported, Court of Appeal, Criminal Division, 17 March 1970. See also
Jenkinss speech to the House of Commons on 8 April 1974, Hansard HC Deb, vol.
872, col. 46.
23 Unreported, Court of Appeal, Criminal Division, 14 March 1974.
24 J. Dysart, R. Lindsay, R. Hammond and P. Dupuis, Mugshot exposure prior to
line-up identification: Interference, transference and commitment effects (2001)
86 Journal of Applied Psychology 1280.
25 See Devlin, above n. 20 at 8.4.
308
(i) The witness himself. Whether he appeared in examination and crossexamination as careful and conscientious or as obstinate or as irresponsible. Whether the experience, for example, in the case of violent
crime, might have affected an identification.
(ii) Conditions at the scene. How good the lighting levels were and
whether the vantage point afforded an uninterrupted view. How much
of the criminal was seen and whether there has been a single period or
multiple periods of observation.
(iii) Lapse of time. The duration between the observation and the subsequent identification.
(iv) Description. What does a comparison show? The judge and jury
should bear in mind that the ability to identify correctly and the ability to
describe correctly are distinct.
(v) Identification parade. Whether there are any criticisms of the line-up
conditions. Did any witnesses, for example, make no identification or
pick out someone other than the suspect?
(vi) Identified person. Whether the suspect is easy to recognise (distinctive) or unremarkable in comparison to others (nondescript).
(vii) No circumstantial evidence. Whether other statements might have
been expected or identifiable objects retrieved that relate to the eyewitnesss evidence.27
This list was taken, with some adaptations, from the evidence given by
the Magistrates Association to the Devlin Committee.28 This would
appear to be the first attempt in England and Wales to formulate
guidance, in the form of a judicial direction, for a jury to follow when
assessing the reliability of an eyewitness. The Lord Chief Justice, Lord
Scarman, had approved these points previously in an address to the
Magistrates Association in 1974.
Many of Devlins recommendations for the revision of identification
parade guidelines and procedure were incorporated into the Police
and Criminal Evidence Act 1984. However there has been no legislation in England and Wales regarding directions to the jury in relation
to eyewitness evidence. Rather, current practice was developed as a
consequence of the judgment of the Appeal Court in Turnbull.
ii. The Turnbull Rules
Following the Devlin Report, the first case to give serious consideration to eyewitness identification was R v Turnbull.29 Following Devlins
recommendations as to jury directions, Lord Chief Justice Widgery
acknowledged that, on occasion, eyewitness identification evidence
may be fallible. He made a distinction between cases with good quality identification evidence and those with evidence of a poorer quality.
Differing sharply from the Devlin Report, the Turnbull judgment
28 Above n. 20. The evidence from the Magistrates Association does not suggest
that this list had been previously published or whether these factors were in
common use to guide the judiciary in their summing-up.
29 Above n. 1.
309
stated that prosecutions based solely upon a single eyewitness identification of good quality should not fail automatically. This implies
that good eyewitness identification on its own should be sufficient to
secure a conviction without the requirement for further corroborative
evidence. Although good identification evidence and poor identification evidence may be easy to define at extremes of the spectrum,
cases which fall between the two cannot be classified so easily. The
majority of cases where identification is disputed will present evidence either in between the two extremes or scattered along the entire
spectrum of quality. The question of sufficiency for prosecutions
based on eyewitness evidence will still arise in a majority of cases:
Whenever the case against an accused depends wholly or substantially
on the correctness of one or more identifications of the accused which
the defence alleges to be mistaken, the judge should warn the jury of the
special need for caution before convicting the accused in reliance on the
correctness of the identification or identifications.30
A set of criteria, subsequently known as the Turnbull Rules, was outlined in the judgment. Subject to being given the appropriate direction by the presiding judge, these rules were intended to enable a jury
to evaluate competently eyewitness identification evidence. These
rules have become widely accepted as the governing test for evaluating identification evidence, cited or referred to by most subsequent
cases dealing with this issue in England and Wales and within other
common law jurisdictions.
The following factors summarize the Turnbull Rules:
1.
2.
3.
4.
5.
6.
7.
8.
the visibility and lighting conditions at the material time;

the distance between the eyewitness and the perpetrator;
the duration of observation by the eyewitness;
whether the observation of the perpetrator was impeded;
whether the perpetrator was known to the eyewitness;
the period of time between the observation and the reporting of
the incident to the police;
the reasons why the eyewitness recalls that the perpetrator was
at the scene;
the differences between the description of the perpetrator
given by the eyewitness and the actual appearance of the
suspect.
Interestingly, these eight factors reflect the Magistrates Association

list, with some additions and alterations. Although Lord Widgery was
clearly rehearsing the Devlin recommendations, the subsequent adoption of his dictum by the courts does not deliver the recommendation
for a statutorily implemented jury direction.
It is therefore established that whether a warning is necessary depends upon the quality of the eyewitness evidence. The test for issuing
30 (1977) 63 Cr App Rep 132 at 137.
310
a warning is whether an identification may be, or is argued to be

mistaken. In an attempt to curb any rigidity or a mandatory form of
words arising from Turnbull, Scarman LJ in R v Keane31 noted the
following:
It would be wrong to interpret or apply Turnbull inflexibly. It imposes no
rigid pattern, establishes no catechism, which a judge in his summingup must answer if a verdict of guilty is to stand. But it does formulate a
basic principle and sound practice. The principle is the special need for
caution when the issue turns on evidence of visual identification: the
practice has to be a careful summing-up, which not only contains a
warning but also exposes to the jury the weakness and dangers of
identification evidence both in general and in the circumstances of the
particular case.32
From this analysis of case law, two basic principles arise: firstly, the
necessity, or requirement for a jury direction to be given; and
secondly the form of words to be used, should a warning be given. It
may be that the rehearsal of the Magistrates Association list in the
Turnbull dictum has prevented any variation in form, or indeed scope,
in subsequent cases. A jury direction to return a verdict of acquittal
also raises the issue of a blurring of the boundaries between the
separate functions of the judge and the triers of fact (i.e. the judge or
jury).
Beyond the eight Turnbull factors, further elements may be relevant
to the interpretation of eyewitness evidence. Many studies into the
psychology of witness recollection and identification also take into
account the crime type; the type of weapon or force used during the
incident; and an indication of the level of stress upon the witness at
the material time.33 These elements may still be relevant even if the
eyewitness was not the victim in the case. The type of event and the
involvement of a weapon may elevate the stress levels of an observer.
Although stress is a physiological characteristic of the witness, and
not a physical factor of the event, it is the combination of crime type
and the weapon or force used or threatened that creates the elevation
of stress levels. Therefore, rather than trying to assess the arousal
levels of the witness, certain combinations of these event characteristics will carry implicit elevated stress levels unless otherwise rebutted. Known as the YerkesDodson Law, cognitive efficiency is
said to decline when arousal is beyond an optimal point.34
31 (1977) 65 Cr App Rep 247.
32 Ibid. at 248 per Scarman LJ.
33 J. Easterbrook, The Effect of Emotion on the Utilization and Organization of
Behavior (1959) 66 Psychological Review 183.
34 R. Yerkes and J. Dodson, The Relation of Strength of Stimulus to Rapidity of
Habit Formation (1908) 18 Journal of Comparative Neurology and Psychology 459;
and more recently in relation to eyewitness testimony, see S. M. Kassin, P. C.
Ellsworth, and V. L. Smith, The general acceptance of psychological research on
eyewitness testimony: a survey of the experts (1989) 44 American Psychologist
1089.
311
Accordingly, the Turnbull Rules are more limited in scope than

current research would indicate that they need to be. Additional factors which may be equally important are: the type of crime committed; whether a weapon was used to commit the crime; and
whether force was used during the commission of the crime.
The Turnbull Rules, as they stand, subsequently have been applied
within many common law jurisdictions. The ways in which they have
been implemented, or referred to, makes for an interesting comparison as to how eyewitness evidence (which does not differ across
jurisdictions) is evaluated and accepted as credible and reliable. Other
jurisdictions had considered and implemented safeguards long before
the Turnbull judgment and the Devlin Report in 1976. However, many
common law jurisdictions have adopted or adapted this particular
jury direction. It is interesting to consider the alternative approaches
developed within non-common law jurisdictions where Turnbull has
not been adopted in any formal sense, but where the same issues have
been addressed in other ways. This paper will discuss how the
Turnbull Rules have been applied in other common law jurisdictions
prior to considering the approach of mixed systems such as Scotland
and South Africa.
iii. Republic of Ireland
Although Ireland is not part of the Commonwealth, the former Irish
Free State had inherited English law and procedure, having formerly
been part of the United Kingdom. Current Irish law requires a judge
to advise the jury to consider the reliability of eyewitness identification evidence. A decision handed down 13 years before the Devlin
Report in England and Wales, People v Casey (1963)35 provides the
authority on identification evidence for the Republic of Ireland. It is of
significance within Commonwealth and common law jurisdictions
and therefore is worthy of discussion here:
[T]he nature of . . . directions and warnings must depend on the facts of
the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown
that certain general directions and warnings are necessary in every case
and that particular types of warnings are necessary in particular types
of case.36
The Casey judgment appears on the whole rather vague as to how the
jury should be directed to avoid any potential miscarriage of justice.
No criteria or formulaic warning were provided, leaving the judge
with some discretion as to how to elucidate the inherently fallible
aspects of eyewitness testimony. Nevertheless, a failure to direct the
jury in the manner laid down by the Supreme Court in Casey is
35 Above n. 12.
36 Above n. 12 at xxx.
312
sufficient to entitle the accused to succeed in his appeal to have the

verdict set aside and a retrial ordered.
Subsequent Irish cases have referred to the Turnbull judgment
when discussing observed differences between the descriptions of the
assailant and the accused,37 the amount of time that a witness was
able to observe the perpetrator,38 and the need for a judicial warning
regarding recognition in addition to identification.39 Turnbull can only
be regarded as persuasive in Ireland, and cannot be cited as precedent. The acceptance of the Turnbull Rules as containing valid criteria
for constructing a judicial warning elaborates upon the basic requirements of Casey. Conversely, this adoption of Turnbull criteria should
not prevent an Irish trial judge from issuing a Casey warning on a
non-Turnbull criterion, for example a witness characteristic such as
stress.
While the Irish case law demonstrates the universal application of
the Turnbull Rules, there is a clear reminder that other factors can and
should be taken into account. Although the list should not be seen as
exhaustive or definitive in England and Wales, it remains a source of
both direction and content. The discretionary position in Ireland
avoids any rigid tabulation or formulaic warnings, as proscribed by
Scarman in Keane. The lack of form or scope in Casey has prevented
the escalation of the judgment into a mantra. Nonetheless, the function of Turnbull as an aide-memoire reminds all parties concerned of
the principal dangers inherent in eyewitness evidence should the
form of words or the scope of a warning be raised.
iv. Canada
Prior to 1976, the Ontario Court of Appeal had adopted the Irish
judgment in Casey as a model for handling identification evidence, as
described in R v Sutton.40 Subsequent to the Turnbull case in 1976,
Lord Widgerys judgment was adopted in Alberta, as stated in R v
Duhamel41 and R v Atfield.42 Following these two cases, most other
Canadian provinces have since accepted Turnbull as the authoritative
benchmark for evaluating eyewitness evidence in so far as the necessity for a special instruction is concerned.43 There are mixed views on
whether Turnbull actually requires a special form of words but the
balance of Canadian opinion favours the Scarman view, as expressed
37 The People v Pringle (1981) 2 Frewen 57.

38 Gallagher v The Revenue Commissioners, OCallaghan and the Government of
Ireland [1995] IR 55.
39 Recognition involves a suspect known to the witness (see The People v Stafford
(1983) 2 Frewen 119) unlike the identification of an unknown person in Casey.
40 (1970) 3 CCC 152. Also see Devlin, above n. 20 at 192.
41 [1981] 1 WWR 22; 56 CCC (2d) 46.
42 (1983) 25 ALR (2d) 97; 42 AR 294.
43 For Quebec, see R v Deschamps (1980) 60 CCC (2d) 364; for Manitoba, see R v
Sophonow (1986) 25 CCC (3d) 415.
313
in the English case Keane,33 that the form should be left to the discretion of the trial judge in the light of the particular circumstances of
the case.
In British Columbia, there initially appeared to be some reluctance
to adopt a mandatory jury direction at all.45 However, the influence of
Turnbull is apparent from subsequent appeal cases where the need for
a direction was recognized, but the adoption of a particular form of
words was eschewed, as observed in R v Edwardson:
This appeal raises directly the question of when a jury should be given a
special instruction on the inherent frailties of eyewitness identification
evidence. That is a very different question from what form such instruction should take, although the two issues are often merged into one in
the cases. Over the years there has been a distinct reluctance on the part
of appellate courts to establish any general rule governing the requirement for a special instruction on eyewitness identification evidence. A
review of the cases, however, suggests that this reluctance stems more
from a desire to avoid endorsing as obligatory any particular form of
language, rather than from a refusal to acknowledge that there are some
cases where a special instruction of some sort is necessary.46
The trial judge in this case had not issued a warning as he saw nothing frail in the evidence of identification, concluding that the necessity for a warning was not present. The piecemeal development of the
law on whether a special direction is required in Canadian law has
evolved through a number of cases, as referred to in Edwardson and
discussed below.
In Virk,47 it was established that a warning was necessary when
eyewitnesses had been shaken on cross-examination. A warning was
also regarded as necessary in Hang48 when the presence of the accused at the scene was not in dispute, but the question of who committed the offence was still an issue. These cases both refer to
Spatola,49 which did not provide for a mandatory direction, but acknowledged the frailties of eyewitness evidence and ordered a retrial
due to the absence of a jury direction in that particular case:
Without taking a position on whether in all cases where a conviction
rests on identification evidence the trial Judge must direct the jury to
view it with caution or warn them of its fallibility, I think it mandatory to
give an instruction of this character where the identification evidence is
offset either by evidence of a contrary nature or by evidence of a failure
or inability of another witness equally in a position to see the alleged
offender, to make an identification.50
44
45
46
47
48
49
50
314
Above n. 31.
R v McCallum (1971) 4 CCC (2d) 116 (BCCA).
R v Edwardson (1993) 77 BCLR (2d) 362 J at paras 289, per Wood.
R v Virk and Sihota(1983) 33 CR (3d) 378.
R v Hang (1990) 55 CCC (3d) 195.
R v Spatola (1970) 4 CCC 241 (Ont CA).
Ibid. at pg 248, per Laskin JA.
In his dissenting argument, Aylesworth JA concluded that the charge

(which was a summary rather than a specific direction on the inherent
dangers associated with eyewitness testimony) was adequate. Citing
the earlier Ontario decision in Sutton,51 he agreed with the principle
observed in Casey that the necessity for a warning was at the discretion of the trial judge:
From the course of the evidence and from what the trial Judge said as to
identification, the jury could not fail to recognize that this was a vital
issue and in my view . . . did not for the purposes of a fair trial require a
warning to the jury concerning the frailties of identification evidence
generally . . .52
In addition, the Supreme Court of Canada in Vetrovec v R53 noted that

a specific warning to the jury becomes all the more necessary where
the complainants identification is uncorroborated. Undoubtedly,
these cases illustrate no clear rule or broad expression of principle
whereby a jury direction may or may not be required in other cases.
Returning to Edwardson, the British Columbia Court of Appeal preferred to adopt the necessity rule as applied by Turnbull, namely
whenever the case against the accused depends on identification
which the defence alleges to be mistaken, a charge to the jury is
required. This approach encapsulates previous narrowly defined categories while preventing an overarching rule applicable to all cases
involving eyewitness evidence, whether contested or not.
Wood J, in Edwardson, noted that a reluctance to adopt a general
rule arose from concerns that a jury direction on the frailties of eyewitness evidence may, in effect, be damaging to an otherwise safe
conviction. In robust cases with reliable evidence, a special instruction
may have the effect of raising undue concerns in the minds of the jury.
Therefore the possibility may arise that a jury could be overcautious
and reject an accurate identification and acquit where they should
convict.
This raises the question of whether the process of justice should err
in favour of the accused, however Wood J suggested that the way in
which the jury direction was cast and indicating the reasons why a
warning is necessary in that particular case (i.e. the scope and form of
direction) should suffice. He concluded that:
In these circumstances, it is not surprising the trial judge initially formed
the view the identification evidence was not frail, and indeed, by comparison to many such cases, it was not. But whether a special instruction
on the inherent frailties of eyewitness identification should be given to
the jury does not depend upon the trial judges subjective view of
the weight of such evidence, for the frailty to which that warning is
directed is the propensity for honest and convincing witnesses to be
mistaken. That is why such a warning must be given whenever the case
51 Above n. 40.
52 Ibid. at pg 245, per Aylesworth JA.
53 (1982) 67 CCC (2d) 1 at 17.
315
against the accused depends on eyewitness identification evidence

which is challenged, and not just in those cases where the judge is of the
view that the evidence is of little weight.54
Turning to the issue of scope and the form of words to be used, Wood
J had earlier ruled on the content of a jury direction in R v Mastin.55
The judgment summarized and recommended the use of two alternative, but very similar, sets of instructions. The first set is the Ontario
Model Jury Charges which arise from early Ontario cases, although
in appellate judgments they first appear uncited in the British
Columbian case R v Virk and Sihota.56 The second set is the Canadian
Criminal Jury Instructions (CRIMJI).57
In earlier cases where a direction was seen to be necessary, the
Ontario Model Jury Charges on identification had been applied. These
instructions were quoted extensively in both Virk,58 where the lack of a
specific formula was expressly recommended (Anderson JA set out in
full the Ontario Model Jury Charges without further comment) and
Hang,59 where each of the seven instructions were reviewed in relation to the facts in that case.
The Ontario Model Jury Charges pre-date the Turnbull judgment in
England, and their provenance is relatively unknown:
Original observation how long did the witness have the accused
under observation? At what distance? In what light? Was the observation impeded in any way, e.g. by passing traffic or a press of people?
Had the witness ever seen the accused before? How long a time elapsed
between the original observation and the subsequent identification to
the police? Did the accused have any special distinguishing features,
either physical or in his speech or dress?
Subsequent identification was the identification wholly independent
and not induced by any suggestion? If photographs were shown to
witness, were they representative? If witness identified accused in court
after being picked out of a photograph, is he merely identifying the
accused with the photograph, rather than with the man originally observed? Was the subsequent identification made by reference to features
not mentioned to police when the witness was first seen by them?
Identification parade has it been shown that nothing whatever was
done to indicate the accused to the witness, either by showing a photograph or by description, or an indication of his place in the line-up? Was
the accused conspicuously different from others in the line-up in age,
build, colour, complexion, dress or otherwise?
Remind the jury of any specific weaknesses in the identification evidence: e.g. any material discrepancy between the description given to the
police in the first instance, and his actual appearance; contradictory
54
55
56
57
58
59
316
Above n. 46 at para. 45.

(1991) 65 CCC (3d) 204.
(1983) 33 CR (3d) 378.
(2nd Edn) ch. 4.55.
Above n. 56.
Above n. 48, per McEachern CJBC.
descriptions; failure of another witness with equal opportunity to recognize accused.

Remind the jury that even though recognition by the witness of someone previously known to him is usually stronger than identification of a
stranger, mistakes are sometimes made in recognition of close
relatives and friends.
The next section of the Model Charge relates to evidence which is capable of supporting an identification. This question does not arise on this
appeal, and I shall not deal with it.
If the quality of the identification is poor, e.g. based on a fleeting
glance or is a mere impression, with no description of the characteristics which distinguish the accused from any other person, e.g. Thats
the man, then, unless there is supporting evidence, the jury should
be clearly instructed that, in the view of the judge, the identification
does not provide a safe basis for conviction.
Finally, instruct the jury that if, after careful examination of the evidence
in the light of the circumstances, and with due regard to all the other
evidence in the case, they feel satisfied beyond reasonable doubt of the
correctness of the identification, they are at liberty to act upon it.
The CRIMJI instructions are substantially similar and are therefore

not repeated here.
I think it would be provident to use either one or the other as a guide in
any case where identification is in issue and proof depends on the
opinion evidence of one or more eyewitnesses. I do not think that it is a
profitable exercise to argue about whether such a witnesss evidence
was positive, less than positive, shaken on cross-examination (whatever
that may mean), or apparently suspect for other reasons such as poor
lighting, fleeting glimpse, etc., before deciding whether specific instructions on the inherent dangers of eyewitness testimony are required.
The truth of the matter is that all eyewitness identifications are subject to certain inherent weaknesses, and we should not be coy about
recognizing that fact and telling juries that which our accumulated
experience in this difficult business has taught us, and which they cannot necessarily be expected to know. For the most part the special
instructions in CRIMJI pass that knowledge along in a way that can be
easily understood.60
v. Australia
A study of case law in Victoria, Tasmania and Western Australia
established that a detailed warning must be given to the jury in relation to disputed eyewitness identification evidence.61 In these cases,
Turnbull was quoted with approval and the formula adopted verbatim.
The New South Wales Court of Criminal Appeal, however, maintained
its position that it would not follow the English law or treat it as laying
60 Above n. 46 at 219, per Wood J.

61 See R v Burchielli (1981) 1 VR 611; McCusker v R [1977] Tas SR 140; Sutton v R
[1978] WAR 94.
317
down anything more than suggestions that trial judges should consider.62 Within these state authorities, a checklist of specific heads of
warnings should not be followed, but rather the jury must not only
be warned appropriately and thoroughly, but that they must be given
assistance in regard to the way in which the warning of the need for
caution is to be taken into account.63 Turnbull, in the courts view,
was, and indeed still is, interpreted as:
a source from which to determine how much by way of categorisation
needs to be introduced into a summing-up, in a given case, in order to
ensure that a jury is warned with the requisite degree of care and
thoroughness and that their attention is adequately and meaningfully
directed to the matters of evidence to be taken into account in their
ultimate determination of the issue of identification.64
The Australian Law Reform Commission proposed in 1985 that eyewitness identification should be the subject of rules of admissibility
and tighter discretionary controls, as part of a comprehensive and
uniform law of evidence.65 It was proposed that the judge should, at
the request of the accused, warn the jury of the need for caution in
acting on eyewitness identification evidence. In particular, the jury
should be warned not to find that the defendant committed the relevant offence on the basis of identification evidence unless there were
either special circumstances in relation to the identification or substantial evidence, other than identification evidence, implicating the
accused. In the absence of such evidence, the court should direct an
acquittal. The proposals were criticized on the ground that they
should be mandatory rather than at the request of the accused. They
were also criticized on the ground that they went too far: the judges
obligations should be entirely discretionary and there should be no
power to take the issue away from the jury.66
These proposals found statutory form in 1991, when both the Commonwealth and New South Wales governments introduced implementing legislation. Known as the uniform Evidence Acts,67 the
Standing Committee of Attorneys-General gave support to a uniform
62 See R v Allen (1984) 16 A Crim R 441 and citations within to Albert (unreported,
Court of Criminal Appeal, New South Wales, 2 December 1977); see also Samuels
JA in Aziz [1982] 2 NSWLR 322l; and R v De-Cressac [1985] 1 NSWLR 381.
63 See R v Allen, above n. 62 at 444, per Street CJ.
64 Ibid.
65 Australian Law Reform Commission, Evidence, Interim Report 26 (1985) paras.
1289.
66 Australian Law Reform Commission, Evidence, Final Report 38 (1987) paras.
1912.
67 The Evidence Act 1995 (Cth) applies to all federal courts across Australia, but not
to state/territory courts exercising federal jurisdiction; the Evidence Act 1995
(NSW) applies to all New South Wales state courts, including cases involving
federal crimes.
318
legislative scheme throughout Australia. The Commonwealths Evidence Act 1995 applies by agreement to the Australian Capital Territory and was also mirrored by legislation in Tasmania68 and Norfolk
Island.69 Section 116 of the uniform Evidence Acts requires that:
(1)
(2)
If identification evidence has been admitted, the judge is to inform

the jury:
(a) that there is a special need for caution before accepting identification evidence; and
(b) of the reasons for that need for caution, both generally and in
the circumstances of the case.
It is not necessary that a particular form of words be used in so
informing the jury.
This requires a statutory warning, similar to that recommended by the

English Law Reform Committee.70 The requirement for a warning, on
a literal interpretation of the section, goes beyond cases where identification is disputed to include all cases where eyewitness evidence is
admitted. The scope of the warning, however, remains discretionary
with no indication as to possible or suggested areas on which a jury
requires judicial direction.
In Dhanhoa,71 on appeal from the Supreme Court of New South
Wales to the High Court of Australia, it was submitted that the trial
judge had failed to give directions concerning identification evidence
as required by s. 116. The Evidence Act was interpreted by Gleeson CJ
to apply only when the issue of identification was in dispute. This flies
in the face of the statutory requirement but is in line with English case
law post Turnbull.
Callinan J, in his dissenting opinion (although agreeing with the
Bench on the issue of the interpretation of s. 116) stated:
I have formed the opinion that s. 116 should not be given a reading
which requires a special precautionary direction unless there is a relevant issue of identification, for three reasons. First, the use of the word
admitted instead of tendered or received tends to suggest a dispute
with respect to identification, and therefore a controversy on the evidence about it. Secondly, the use of the words special need for caution
implies that there is something in the case in relation to identification
which calls for the special treatment of the evidence of identification: if
there were no issue about it there would not be a need, let alone any
special need for caution. Thirdly, because s. 116(1)(b) of the Act draws
attention to the circumstances of the case, it is to those that regard must
be had. And if in the circumstances of the case identification is not
disputed, then a direction counselling caution about it, would seem to a
jury to be bizarre.
I would conclude therefore that s. 116 applies only to those cases in
which the identification of the accused as the, or a perpetrator of the
68
69
70
71
Evidence Act 2001 (Tas).

Evidence Act 2004 (NI).
See above n. 18.
Dhanhoa v R (2003) 199 ALR 547.
319
relevant acts, or as the person omitting to do the relevant acts is in

issue.72
The Dhanhoa interpretation is in line with previous Australian judgments of both federal and state courts prior to the implementation of
the uniform Evidence Acts. The federal court in Tomicic73 rejected an
appeal, stating that the Turnbull-style direction was adequate and that
the judge had not erred in his direction to the jury. In Domican74 the
opinion of Mason CJ is of interest where he states:
whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of
guilt of an offence, the judge must warn the jury as to the dangers of
convicting on such evidence where its reliability is disputed.75
This opinion appears to start with a broad requirement for a judicial

warning, but is then limited to instances of disputed eyewitness evidence. Case law also suggests that the terms of a warning need not
follow any particular formula76 and that a warning in broad or general
terms is insufficient.77
In the Australian Law Reform Commissions Issue Paper78 two
basic questions were raised. Firstly, should s. 116 of the uniform
Evidence Acts be amended to clarify that directions to the jury in
relation to identification evidence are not mandatory and, if so, how?
Secondly, are there any other concerns in relation to identification
evidence and the uniform Evidence Acts and, if so, what are those
concerns and how should they be addressed?
A review of the uniform legislation in 2005 suggested that the
Dhanhoa remedy, in relation to a requirement for a direction in all
cases, and the appellate rules, which prevent appeals succeeding
solely on technicalities, are sufficient.79 Any amendment to s. 116 (by
the insertion of . . . and the reliability of that evidence is in dispute
. . .) may, according to the Commission, create problems of interpretation for other provisions within the Act that are phrased in similar terms.
Victoria, Queensland and the Northern Territory have also reviewed their counterpart laws of evidence with a view to harmonizing
72
73
74
75
76
Ibid. at 551.
Tomicic v R No ACT G79 of 1987 FED No 495 (23 August 1989).
Domican v R (1992) 173 CLR 555.
Ibid. at 561.
See R v De-Cressac, above n. 62 at 384; and R v Finn (1988) 34 A Crim R 425 at
435.
77 Kelleher v R (1974) 131 CLR 534 at 551.
78 Australian Law Reform Commission, Review of the Evidence Act 1995, Issue
Paper 28 (2004) at paras. 10.1518.
79 Australian Law Reform Commission, Review of the Uniform Evidence Acts,
Discussion Paper 69 (2005) at paras. 12.3946.
320
their legislation.80 In the interests of uniformity, legislative amendments to the uniform Acts should be mirrored by other participants,
and newcomers, in the Australian Commonwealth. Victoria, a state
that has not yet enacted the uniform Evidence Act, does not discuss
the jury direction for eyewitness evidence in its 2006 report,81 yet
appears committed to joining the uniform regime, as does Western
Australia.82 The Queensland Law Reform Commission, however, reported a preference to amend s.116 prior to any enactment of the
uniform legislation within that particular state.83 The Northern Territories Law Reform Commission recommends adoption of the uniform
scheme84 with no discussion of s. 116 at this stage.
vi. New Zealand
There is a statutory requirement for a jury direction in New Zealand,
but no requirement as to the form it should take.85 Accordingly, the
approach is similar to that taken in Australia. However, the New
Zealand statute clearly states that such a warning is only necessary
where identification is an issue, whether wholly or substantially. It is
interesting to note that this caveat as to when a statutory warning is
required was established in 1982, some 15 years before the Australian
uniform Evidence Acts that omitted to limit any statutory warning:
(1) In a criminal proceeding tried with a jury in which the case against
the defendant depends wholly or substantially on the correctness of one
or more visual or voice identifications of the defendant or any other
person, the Judge must warn the jury of the special need for caution
before finding the defendant guilty in reliance on the correctness of any
such identification.
(2) The warning need not be in any particular words but must
(a) warn the jury that a mistaken identification can result in a serious
miscarriage of justice; and
(b) alert the jury to the possibility that a mistaken witness may be
convincing; and
(c) where there is more than 1 identification witness, refer to the
possibility that all of them may be mistaken.86
80 Australian Law Reform Commission, Uniform Evidence Law, Final Report 102
(2005); a joint publication with New South Wales Law Reform Commission
(Report 112) and Victorian Law Reform Commission (Final Report).
81 Victorian Law Reform Commission, Implementing the uniform Evidence Act, Final
Report (2006).
82 See Law Reform Commission of Western Australia recommendation in ALRC
Discussion Paper 69, above n. 79 at para. 2.2.
83 Queensland Law Reform Commission, A Report on the uniform Evidence Act,
Report 30 (2005) at 27.
84 Northern Territories Law Reform Commission, A Review of the uniform Evidence
Acts, Report 60 (2006) at para. 8.60.
85 A direction was first implemented by the Crimes Act 1961, s. 344D. Sections 344B
to 344D were inserted, as from 11 December 1982, by the Crimes Amendment Act
1982, s. 2.
86 The Evidence Act 2006, s. 122 substantially re-enacted the provisions in the
Crimes Act 1961, s. 344D.
321
Turnbull is referred to in New Zealand case law and clearly provided

the impetus for the legislation. In R v Hewett, Goddard J stated:
Turning to the second limb of appeal, the s. 344D Crimes Act 1961
warning required in a trial where there is identification evidence of a
stranger of the fleeting variety does not specify the use of any particular
words or formula. The provisions of s. 344D followed the statements of
the English Court of Appeal in Turnbull, which made clear that the form
in which a warning is to be given is a matter for the trial Judge. So long
as the trial Judge warns of the special need for caution before convicting
in reliance on the correctness of identification evidence, and advises the
reasons for that warning in terms of the possibility that a mistaken
witness can be a convincing witness, the direction will comply with s.
344D. As the Court said (at p552), provided this is done in clear terms
the Judge need not use any particular form of words.87
Despite having a statutory warning, the appeal courts still refer to

Turnbull in assessing the quality or sufficiency of the warning.
Robertson J in OHara stated:
The Judge, in terms of Turnbull . . . had properly warned the jury about
the need for caution. The witnesses had themselves been careful in what
they had said. If they had been adamant and absolute they probably
would have been attacked for being too confident.88
In 1991 the New Zealand Law Commission published the first of a

series of discussion papers on aspects of evidence law and codification,89 which resulted in the Evidence Act 2006. The Commission was
of the view that even with a more detailed admissibility inquiry, juries
still need to be cautioned about identification evidence. The Commission originally drafted a detailed judicial direction that contained references to research on memory:
In addition to the matters set out in [s. 344D] or in elaborating one or
more of those matters, a warning could include, if relevant, the
following:
The difficulty of assessing the reliability of identification evidence,
particularly as a witnesss confidence, or lack of confidence, does not
necessarily indicate how reliable their identification evidence is;
The ways in which events surrounding the witnesss observation of
the defendant may have influenced the quality of the identification
evidence (eg, time of observation, lighting, distance of witness from
offender, weather conditions, the stress inherent in the situation,
whether violence was used, or whether a weapon was involved);
The ways in which any factors particular to the individual witness
may have influenced the quality of the identification evidence (eg,
poor eyesight or hearing, or bias);
87 R v Hewett [2003] NZCA 291 at para. 24.
88 OHara v R [2005] NZCA 43.
89 New Zealand Law Commission, Evidence Law: Codification, Preliminary Paper 14
(1991).
322
The ways in which any factors relating to the defendant may have
influenced the quality of the identification evidence (eg, the use of a
disguise);
The fact that if the witness and defendant are of a different race/
ethnicity, the identification may be less reliable;
The greater the period of time between the sighting and the identification, the greater the likely deterioration of memory;
The fact that memory of peripheral detail, and the quality or consistency of descriptions given by the witness, may not be indicators
of reliability.90
Commentators did not support such an approach, arguing in favour

of shorter and simpler jury directions: supporting the current provision, but noting the desirability of judges tailoring the direction to the
circumstances of the particular case. The Law Commission agreed
with this approach.91
Therefore, it is interesting to note that despite apparent differences
in the wording of their respective Acts, both the Australian and New
Zealand jurisdictions require directions only when eyewitness identification is an issue at trial. Although statute provides for a requirement, the form of words and the scope of the warning are not
prescribed in the Acts. The concept of standardized, model or pattern
jury directions will be considered below as an alternative to the
tailored, yet discretionary content of directions seen here.
vii. Scotland
In Scotland, which is a separate jurisdiction within the United Kingdom, the Turnbull case cannot be regarded as precedent, it is merely
persuasive, and therefore jury direction with regard to eyewitness
identification is largely left to the discretion of the trial judge. Unlike
Ireland, there is no reference to the Turnbull judgment in the criminal
courts. As a jurisdiction which draws heavily on the civilian tradition,
Scots law is one of few legal domains to prohibit convictions based
upon uncorroborated identification evidence. A second independent
identification or further circumstantial evidence will be sufficient to
corroborate an identification, if accepted by the jury. The sufficiency
of eyewitness identifications in Scotland was discussed widely in the
cases Reilly92 and Ralston.93 In Reilly, an appeal was allowed due to the
lack of corroborating evidence during the initial trial. The eyewitness
was not able to observe fully the two perpetrators as masks obscured
their faces. The Ralston case was distinguished from Reilly, as the
emphatic positive identification in the case required less corroborating evidence. In the latter case, the principal eyewitness was able to
90 New Zealand Law Commission, Evidence: Evidence Code and Commentary,
Report 55, Vol. 2 (1999) para. C398.
91 New Zealand Law Commission, Evidence: Reform of the Law, Report 55, Vol. 1
(1999) paras. 2167 and 492.
92 Reilly v HMA 1981 SCCR 201.
93 Ralston v HMA 1987 SCCR 467.
323
identify the perpetrator in a line-up and two secondary witnesses

were able to provide less accurate descriptions in corroboration.
Therefore, unlike the position in England and Wales, Ireland,
Canada and some American states, a judicial warning regarding identification is not established in Scots law. The Bryden Committee,94
reporting two years after Devlin, took the view that that a Turnbullstyle jury direction need not be given in cases which involve eyewitness identification. The findings of the committee endorsed a
Practice Note previously issued in 1977.95 The Bryden Report made
clear that the discretion of the trial judge was a key feature of Scots
law and that the function of a trial judge is to direct the jury with
regard to the law. No summing-up of the facts is either required or
desired: this distinguishes Scots law from other jurisdictions where
mention of the material facts is built into a Turnbull-style warning. The
Practice Note does not have the authority of statute or an appeal court
judgment. If a Scottish appeal court were to find that a trial judge
should direct the jury with regard to identification evidence, the judgment would supersede the Practice Note and become a Scottish equivalent of the Turnbull judgment.96
In 1990 in McAvoy97 the Scottish Court of Criminal Appeal
considered the need for jury direction in certain cases. No specific
formula, as found in R v Turnbull, was provided thereby avoiding
appeals being raised on technicalities rather than serious miscarriages of justice. The Lord Justice Clerk (Ross) stated:
When identification is in issue in a case, the trial judge may feel it
desirable to remind the jury that errors can arise in identification and
that there have been cases of mistaken identity with the result that the
jury must consider the evidence of identification with some care. A trial
judge may go on to remind the jury (if this is the case) that the witnesses
were not familiar with the person whom they identified prior to the
occurrence of the alleged crime. That being so the jury may wish to ask
themselves how long the witness had the person whom he identified in
view whether it was a mere fleeting glance or something more.
Whether the person concerned was clearly visible. He may also suggest
that the jury may wish to ask themselves how positive the identification
was and whether the person identified was nondescript or had some
distinctive features and characteristics. However, precisely what the
trial judge says in this connection is a matter for his discretion . . . We
regard what the trial judge said to the jury about identification in this
case as the bare minimum which was required. It would have been
better practice for the trial judge to have said more to the jury on this
subject, but the jury can have been in no doubt that identification was
94 W. J. Bryden, Identification Procedure under Scottish Criminal Law. Report to the
Scottish Home and Health Department, Cmd 7096 (1978).
95 Ibid. at Appendix H (Note by Lord Justice GeneralCriminal Trials, 18 February
1977).
96 Ibid. at para. 3.07.
97 McAvoy v HMA 1992 SLT 46.
324
critical and he did remind them that they had to be careful as to what
conclusions they reached.98
The direction in McAvoy included points on the duration of observation, the familiarity of the eyewitness with the accused and the depth
and accuracy of the description. This judicial warning regarding identification was followed in subsequent cases where the assailant was
partially masked,99 where the duration of the observation of the perpetrator was an issue,100 or where the witness was under the influence
of alcohol.101 From these few cases, many of the Turnbull criteria have
been included within judicial directions in Scotland.
In contrast, the High Court in Chalmers102 upheld the deliberate
decision of the trial judge not to give any kind of jury direction. The
commentary on the appeal judgment by Sheriff Gordon103 emphasized the need to retain judicial discretion and that a generic warning
to the jury should not become part of criminal procedure as is the case
in England. The necessity for and the precise wording of a judicial
warning is a matter for the discretion of the judge. In summary, some
cases will require direction regarding eyewitness testimony and failure to do so may constitute a miscarriage of justice; other cases will
require no direction or revision of the facts whatsoever.
viii. South Africa
As another mixed jurisdiction, South Africa, unlike Scotland, permits
courts to make findings based upon the evidence of a single witness.
The colonies, and the Union in 1917, adopted English law with
binding authority until independence. The 30 May 1961 formula
renders subsequent English decisions persuasive only. South Africas
approach to eyewitness evidence developed without reference to
Turnbull, or indeed to the approach taken by any other jurisdiction.
Within the Orange Free State Provincial Division, as early as
1932,104 de Villiers JP listed factors to be taken into account when
assessing eyewitness testimony, pre-dating similar approaches within
all of the Anglo-American jurisdictions. This case formed the basis of
a cautionary rule to guard against eyewitness mistakes:
[T]he uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction . . . but in my
opinion that [witness] should only be relied on where the evidence of the
single witness is clear and satisfactory in every material respect.105
98
99
100
101
102
103
Ibid. at 50.
For example see Farmer v HMA 1991 SCCR 986.
For example see Blair v HMA 1994 SLT 256; 1993 SCCR 483.
For example see Webb v HMA 1997 SLT 170; 1996 SCCR 532.
Chalmers v HMA 1994 SCCR 651.
Ibid. at 656, per Sheriff Gerald Gordon QC, editor of the Scottish Criminal Case
Reports.
104 R v Mokoena (1932) OPD 79.
105 Ibid. at 80, per de Villiers.
325
A cautionary rule can be seen as a direction designed to warn a jury

as to the dangers of eyewitness evidence and was developed under
the British colonial jurisdiction. A variety of cautionary rules survived
the abolition of juries in 1969106 by the Republic of South Africa and
remains an important part of criminal procedure. A judge sitting
alone, or with assessors,107 is still required to indicate that he or she
has considered the issues in the judgment handed down by the
court.
The factors mentioned by de Villiers were often taken as a checklist
for reliability; if none was applicable, then the prosecution testimony
was not rejected and taken to be, without cause shown, reliable evidence. This reasoning is flawed for the simple reason that the prosecutions evidence does not have to fail in order to secure an acquittal.
The cautionary approach was developed further in Shekele108 to ensure that identification evidence was tested by directing questions to
the witness regarding the circumstances at the locus.
While receiving the approval of the Appellate Division, the de
Villiers factors are a useful tool for assessing what is referred to as the
cogency of a witness: this goes beyond what Turnbull, and other
cases have recommended or prescribed. In assessing cogency,
Boshoff J in Mptung109 identified three elements (observation, recollection and narration) that should be taken into account when a judge
or jury is considering the value of eyewitness testimony.
(a) Observation
Boshoff J noted the following five factors that affect the observational
element in relation to the scene of the incident and the witness at the
material time. The authors have elaborated upon each of these factors
(italicized commentary):
1.
The accuracy of a witness will depend on their eyesight.

This is a personal factor, i.e. one of many other witness characteristics, that may or may not apply to all witnesses, although
certainly of relevance in respect of those with poor physical
abilities.
2. The environmental factors such as the state of the light, how far
away he/she was, whether an advantageous viewpoint was
available and the duration of observation.
106 Abolition of the Juries Act 34 of 1969. See also M. Huebner, Who Decides?
Restructuring Criminal Justice for a Democratic South Africa (1993) 192 Yale Law
Journal 961 and J. Chubb, The Jury System (1956) 73 South African Law Journal
194.
107 See Huebner, above n. 106 at 795 for a discussion on assessors as a replacement
for juries.
108 R v Shekele (1953) 1 SA 636 (T), at 638, per Dowling J.
109 R v Mptung (1960) (1) SA 785 (T).
326
These factors are all present in the Turnbull rules. Not all eight
factors are covered here, however the remainder are present in
the following section (recollection).
3. Impressions of appearance may be distorted by the witnesss
prejudices and preconceptions.
In essence, physical characteristics may be inaccurately described or, on occasion, be ascribed. It is unclear whether this
element of observation relates to cross-race identifications, any
possible familiarity with the perpetrator, or to preconceptions in
general across society as a whole.
4. The ability to form accurate impressions is affected by state of
mind.
This element may include the rather vague Turnbull factor reasons to remember, although the wording suggests an emphasis
on the witness and may be related to attention and possibly
stress levels, which Turnbull distinctly lacks.
5. The distinctiveness of the persons appearance.
This may also include reasons to remember but with the emphasis on the perpetrator rather than the ability of the witness.
(b) Recollection
Following observation, recollection is the subsequent procedure of
retrieving the information that has been viewed under the conditions
as described above. Boshoff J notes the following (italicized
commentary):
1.
2.
3.
The strength of the memory.

Very young and very old people tend to forget more easily.
Whether the person was known to the witness can also be attributed to this element.
The nature of the original impression.
It can be assumed that weak observational elements will not
produce a strong subsequent recollection.
Overlaying of subsequent suggestions.
Photographs of possible offenders may cause an unconscious
substitution of facial features between the physical image and the
mental recollection. Also, repeated observation of the suspect
will increase certainty and verbal suggestion can seriously diminish the value of identification.
All of the Turnbull factors are introduced, however the introduction of

commentary relating to procedural law here is noteworthy. It may be
comparable to guidelines relating to identification parades in England
and Wales which have introduced cognitive psychological thinking to
prevent visual or verbal overshadowing effects.110
110 G. Davies and T. Valentine, A review of codes of practice for identification (2000)
7 Expert Evidence 59.
327
(c) Narration
This element of cogency appears to reflect the witnesss ability to
provide a clear and coherent account of the events. Narration appears
to form part of the overall admissibility of the testimony with regard
to competency of a witness. Lunacy, or diminished mental capacity,
has been abandoned as a bar to competency, although Boshoff J was
more concerned with the ability to give a coherent account which
would suggest honesty rather than mental capacity.
These three elements combined to form the basis of the modern
cautionary rule in South Africa. Two appellate cases, Webber111 and
Sauls,112 reiterate that there is no magic formula for assessing eyewitnesses. The cautionary rule may be a guide to the right decision,
but . . . the exercise of caution must not be allowed to displace the
exercise of common sense.113 Although these cautionary factors are
primarily concerned with the evidence of a single witness, they
are useful tools for assessing the weight which may be attached to the
totality of evidence when corroboratory evidence is presented in conjunction with eyewitness testimony.
The Appellate Division expressed the dangers of relying upon eyewitnesses and the caution that must be exercised. No formula such as
Turnbull appears to be present, although the same factors are addressed, as noted in Mthetwa:
It is not enough for the identifying witness to be honest. The reliability
of his observation must also be tested. This depends on various factors
such as lighting, visibility and eyesight; the proximity of the witness; his
opportunity for observation, both as to time and situation; the extent of
his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accuseds face, voice, gait and dress; the
result of identification parades, if any; and of course, the evidence by or
on behalf of the accused. This list is not exhaustive.114
The extent to which eyewitness evidence has been discussed under

South African law provides extensive judicial reasoning as to when
and how an eyewitness may be accepted as reliable; or more notably,
the circumstances where eyewitness testimony must be rejected. The
approach taken here is the most extensive of all jurisdictions considered above, yet uninfluenced by external sources of law. The South
African concept of cogency appears to include many of the Turnbull
factors spread across broad principles of observation, recollection
and narration. As juries no longer exist, the form of words need not
be considered as an issue, however the scope of the cautionary rule is
both wide and rich with suggestions for factors to be taken into
account.
111
112
113
114
328
S v Webber (1971) (3) SA 754 (A).

S v Sauls (1981) (3) SA 172 (A).
Ibid. at 180E-G, per Dietmont JA.
S v Mthetwa (1972) (3) SA 766 (A) at 768, per Homes JA.
III. Analysis and Recommendations

From this examination of the approach taken to eyewitness identification in various Commonwealth jurisdictions, it is evident that an
awareness of the factors influencing eyewitness identification evidence is required for all cases where identification is disputed. Certainly the trial judge must be sufficiently aware of such factors in a
particular case, so as to ensure that the jury is given appropriate
instructions if and when required, thus avoiding any miscarriage of
justice and subsequent retrials. The public prosecutor or the defence
may wish to draw attention to or contest the reliability of an eyewitness irrespective of whether the presiding judge is required to
issue jury directions.
Despite differences in procedure, the jurisdictions discussed above
have very similar mechanisms for assessing eyewitness testimony. It
can be seen that, although it is not the oldest of cases, Turnbull has
been influential in the formulation of some judicial warnings across
the Commonwealth. In jurisdictions where Turnbull is not cited, very
similar approaches have been taken, which is inevitable given the
inherent dangers associated with eyewitness testimony.
Within this section, the authors will advocate the adoption of a
mandatory jury direction in all cases involving eyewitness evidence.
This goes beyond the need for a warning when the case is dependent,
wholly or substantially, on such evidence as described in the English
cases Turnbull and Keane. It will be suggested that the Australian
statute (s.116 as written, and not as interpreted by the judiciary) can
form the basis for a universal paradigm to guard against erroneous
eyewitness evidence.
i. Is There a Paradigm?
A mixture of statutory and common law requirements for a judicial
direction can be seen across the selected jurisdictions. The majority
favour a balanced approach in relation to scope by suggesting significant factors pertaining to eyewitness reliability in specimen directions and requiring the judge to include other significant issues raised
during the trial.
The recommendation for a statutory warning was adopted by
Devlin,115 yet this was not, and has not been enacted in any Commonwealth jurisdiction, save Australia and New Zealand. The suggestion in Devlin that weak eyewitness evidence should cease to form the
basis of a prosecution has not been taken up by any jurisdiction, least
of all England and Wales. The paradigm of a distinction easily being
able to be made between good quality eyewitness evidence as posed
by Lord Chief Justice Widgery in Turnbull, and identification evidence
at the weaker end of the spectrum and dealt with by a warning
115 Above n. 20.
329
intended primarily to deal with the ghastly risk run in cases of fleeting encounters,116 is predominant.
A New Zealand Law Commission paper117 presents an in-depth
discussion of the psychological literature applicable to eyewitness research in general and identification evidence in particular. As with
many researchers, the paper divides the factors affecting eyewitness
testimony into three broad categories: event, witness and offender
factors.
The criteria in Turnbull are predominantly event factors such as the
duration of observation, distance, objects obscuring the view, lighting
levels amongst others. Event factors can be seen as applicable to all
cases, irrespective of the type of witness involved in the identification
process. The universal applicability of event factors is also reflected by
their presence in the warnings of other jurisdictions.
Witness factors can be further divided into malleable or stable
characteristics.118 Few stable characteristics (such as gender, race,
intelligence or personality) are influential on eyewitness evidence
other than age, which does not feature in any jurisdictions specimen
direction, but may do if the scope of a warning is required to cover
other issues relevant to the case. Malleable characteristics such as
alcohol levels have variable results in the literature. Whether the witness knows the offender may be seen as a malleable characteristic as
familiarity may increase post event.
Offender factors such as distinctiveness in appearance, or reasons
to remember the person, place or event feature in many judicial specimen directions. Studies have shown that changes due to age, hairstyle
and facial hair, disguises or general appearance have a reliable and
significant detrimental effect.119 Whilst Turnbull draws attention to
the differences between the description of the perpetrator given by
the eyewitness and the actual appearance of the suspect,120 and to
the reasons why the eyewitness recalls that the perpetrator was at the
scene,121 there is little analysis of the significance of these broad
principles.
It is the authors view that the inclusion of event factors should be
mandatory in any judicial warning, given their universal validity for
all eyewitness scenarios. This would represent the bare minimum in
terms of scope. The precise form of words may well be best left to the
discretion of the trial judge to ensure that the jury are not overly
drawn to the frailties of eyewitnesses should those witnesses present
116 R v Oakwell (1978) 66 Cr App R 174 at 178, per Widgery LCJ and also R v
Pattinson and Exley [1996] 1 Cr App R 51.
117 New Zealand Law Commission, Total Recall? The Reliability of Witness Testimony
Miscellaneous Paper 13 (1999).
118 Ibid. at 15 and references cited therein.
119 B. Cutler and S. Penrod, Mistaken Identification: The Eyewitness, Psychology and
the Law (Cambridge University Press: New York, 1995) 100.
120 (1977) 63 Cr App Rep 132.
121 Ibid.
330
provide strong and coherent testimony. By introducing a mandatory

warning in all instances, there is the inherent risk of creating undue
caution; this may, however, require the prosecution to build a
stronger case when eyewitness evidence is relied upon in any way or
form. The inclusion of witness and offender factors should, conversely, be dependent upon their relevance to the case in question.
Again, the form of words would be tailored to the case in question
should the need arise to mention such factors in a mandatory warning. It is arguable that such a two-tier approach to judicial directions
will help to safeguard against mistaken identifications. The scope of
any given warning, will no doubt be suggested by counsel during
proceedings in order to assist the judge in drawing attention to the
pertinent factors relating to each individual case. The form of words
used, however, may require a more active role by the judiciary. As
with any judicial direction or warning, training and an increased
awareness of the factors affecting eyewitness testimony will be
required.
Turnbull was intended to be seen as providing a non-exhaustive list
of factors, however many specimen directions stop short of elaborating beyond the scope of Turnbull. This article has indicated that there
are many pertinent factors such as stress levels, the use of force or
apparent weapons that can have an effect on eyewitness testimony.
The overarching concepts of observation, recollection and narration
as seen in South Africa provide a generic framework within which the
scope of a warning can be formulated on a case by case basis. Accordingly, the South African model may provide the most logical and
versatile framework within which a two-tier mandatory and discretionary warning can be formulated to avoid any rigid tabulation of
factors such as has persisted in the case law described above.
ii. Model Instructions
Pattern or model jury directions have been constructed from a variety
of sources. Judgments such as Turnbull, Law Commission recommendations, academic texts and judicial studies boards may provide specimen directions based upon a range of opinion, yet these are variable
in authority. The very existence of a pattern or model direction, however, can lead to appeals alleging errors or mistakes in the adopted
pattern. Equally, the construction of an individually drafted direction
appropriate to the case may be misconstrued as deviance from a
normal and adopted practice. Hauschildt122 argues in favour of model
instructions, although many other sources are against this approach,
due to the binding nature and form of words often found in model
directions.
122 J. Hauschildt, Deadlocked: The Case for Mandatory Pattern Instructions in

Criminal Jury Trials (2005) 50 Criminal Law Quarterly 453.
331
iii. Possible Lessons from the USA?

United States case law makes no reference to the Turnbull judgment.
As a collection of almost exclusively common law jurisdictions, although not part of the Commonwealth, a brief examination of warnings against possible erroneous eyewitness evidence may inform the
discussion on developments within other jurisdictions. The US comparable ruling on eyewitness reliability is to be found in Telfaire.123
Model Special Instructions on Identification were added to the judgment as an appendix:
1) Are you sure that the witness had the capacity and an adequate
opportunity to observe the offender?
2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection?
3) You may take into account any occasions on which the witness failed
to make an identification of the defendant, or make an identification that
was inconsistent with his identification at the trial.
4) Finally you must consider the credibility of each identification.
This model incorporates many of the Turnbull factors. Telfaire has

been approved on a federal level by all the US circuits, save the fifth
and eleventh circuits which have not yet made a ruling regarding
eyewitness identification evidence. By comparison, the state courts
are divided in opinion with regard to the Telfaire instructions. The
supreme courts of West Virginia, Massachusetts, Kansas and New
York have all held that failure to give a Telfaire-style jury direction
constitutes a ground for appeal. However, the majority of the US state
courts either refuse to allow judicial comment regarding evidence, or
simply do not require any jury instruction regarding eyewitness
identification.124
Irrespective of the individual state procedures, an assessment of
eyewitness factors using an advisory system can work towards providing some of the answers to the Telfaire model instruction. For
those states refusing to allow judicial directions or comments, a
knowledge-based system would ideally provide sufficient means for
counsel to demonstrate any fallibilities during witness examination.
The consideration of a statutory model direction in New Zealand
was rejected125 in favour of a flexible direction with discretionary
content. The above American direction is limited in scope and elaboration beyond these elements may be seen by an appellate court as
undue influence on the jury. If model directions are to be constructed,
their content should encompass all relevant eyewitness factors and
allow a flexible approach to alter the warning dependent upon the
case in question.
123 United States v Telfaire (1972) 469 F 2d 552 (DC Cir).
124 39 states prohibit judicial comment on the evidence. See H. Kalven and H. Zeisel,
The American Jury (Little, Brown & Co: Boston, 1966) 420 (Table 104).
125 See NZLC, Report 55, Vols. 1 and 2, above nn. 90 and 91.
332
iv. The Impact of Judicial Directions

Research examining jurors comprehension of the legal system, instructions and judicial directions is largely conducted in the United
States due to restrictions on jury research in many jurisdictions, and
the lack of ecological validity for many mock jury studies. American
research suggests that juries have widespread difficulties in understanding relevant legal standards and their application of the law to
the facts of the case.126 In the UK, research by the Centre for Criminology at Middlesex University found that more than half the jurors in
their study did not fully understand what was happening in court,
citing legal terminology as the main impediment.127 Research in New
Zealand indicated that much time and effort was wasted by juries
trying to recall the directions given by the judge.128
Early work by Sales, Elwork and Alfini129 investigated the language
used for judicial directions, revised instructions and thereby increased
comprehension rates based upon the grammatical and lexical content
of directions. The nature of language is still raised today by the American Judicature Society,130 which advocates the provision of written
instructions in plain English, and also by Justice Vowell, writing in
the American Journal of Trial Advocacy.131 The review eralier in this
paper of eyewitness evidence directions across the Commonwealth
does not suggest that the linguistic nature of judicial warnings is of
significance. Rather the presence of a warning as a safeguard, or the
absence of a warning as a ground of appeal, is of greater concern.
The Michigan Project132 compared instructed juries with uninstructed juries in relation to a number of issues in criminal trials. The
project identified difficulties for both groups and, on many occasions,
the instruction had no statistically significant effect. The range of
instructions did not, however, cover judicial comment on eyewitness
identification evidence, but focused largely on either complex or abstract issues such as reasonable doubt, defendant impeachment by
prior conviction and aspects of mixed direct and circumstantial
evidence.133
126 G. Kramer and D. Koenig, Do Jurors Understand Criminal Jury Instructions?

Analyzing the Results of the Michigan Juror Comprehension Project (1990) 23
University of Michigan Journal of Law Reform 401.
127 See Zander and Henderson, The Crown Court Study, Royal Commission on
Criminal Justice Research, Study No 19 (1993).
128 W. Young, Summing-up to Juries in Criminal CasesWhat Jury Research says
about Current Rules and Practice (2003) Criminal Law Review 665.
129 See J. Lieberman and B. Sales, Jury Instructions: Past, Present and Future (2000)
6 Psychology, Public Policy and Law 587 and citations therein.
130 http://www.ajs.org/jc/juries/jc_improvements_plainenglish.asp (last accessed: 1
August 2007).
131 S. Vowell, Alabama Pattern Jury Instructions: Instructing Juries in Plain
Language (2005) 29 American Journal of Trial Advocacy 137.
132 See Kramer and Koenig, above n. 126.
133 Ibid. at 429.
333
The impact of directions regarding eyewitness evidence is examined by Katzev and Wishart.134 They tentatively suggest a trend of
decreasing likelihood of a pre-deliberation judgment of guilt with
increasing degrees of information.135 The study concerned a weak
prosecution case and groups were provided with one of:
1.
2.
3.
instruction onlybased upon the Telfaire model as discussed in

section III(iii);
instruction and summationincluding a judicial recapitulation
of the evidence presented by both prosecution and defence
counsel;
instruction, summation and commentaryincluding the judges
evaluation of the evidence.
The duration of jury deliberation was also seen to be reduced when

summaries and commentary were provided, as was the likelihood of a
hung verdict. The article notes the contrast between the specific and
more detailed British approach to judicial instructions in comparison
to the general American warning that is questioned as a valid safeguard against mistaken identifications. This research suggests that the
more detailed and tailored warnings seen across the Commonwealth
are of greater value and better understood by juries.
v. Written Directions
The use of written directions for the jury in England and Wales is
discussed at length by Madge136 who argues for the introduction of
such measures, despite the history and custom of oral justice in the
common law tradition. Anecdotal research appears to suggest that
written instructions reduce deliberation times and by removing uncertainty and confusion (evident from fewer questions by the jury to
the Bench) the jury may adopt a more structured and effective
decision-making process.137
The New Zealand Law Commission138 also recommends that
written directions be given to juries. The District Court provides, as a
matter of course, a jury booklet with written directions as to the
elements of an offence, but in a general and abstract way. The judges
of the High Court, however, prefer to present directions focused on
the relevant issues raised by the case. The general trend for tailoring
eyewitness evidence directions to the facts of the case as seen across
the Commonwealth jurisdictions would support the approach taken
by the New Zealand High Court.
134 R. Katzev and S. Wishart, The impact of Judicial Commentary Concerning
Eyewitness Identifications on Jury Decision Making (1985) 76 Journal of Criminal
Law and Criminology 733.
135 Ibid. at 740.
136 N. Madge, Summing Up: A judges Perspective (2006) Criminal Law Review 817.
137 Ibid. at 821.
138 New Zealand Law Commission, Juries in Criminal Trials, Report 69 (2001) paras.
31314.
334
Alternatively, no specific support for written instructions was

found by a field experiment for either criminal or civil cases.139 Research conducted for the Judicial Council of Wisconsin did, however,
find that the concerns of judges and attorneys regarding the implementation of written directions were unfounded and that, overall,
there were none of the harmful consequences that it had previously
been suggested would accompany both written directions and preliminary instructions (which will be discussed in section III(vi)). It is
arguable however that both procedures must be given serious consideration for implementation when considered in tandem.140
vi. Preliminary Instructions
The timing of instructions as studied by Heuer and Penrod (along with
the written directions discussed in section III(v)) evaluated instructions given to jurors prior to the oral evidence given in a trial. They
found benefits in that jurors followed legal guidelines in their
decision-making and that their satisfaction with the trial process was
increased. No negative hypotheses such as impracticality or extra
judicial demand were found to be present.141 The limitations of memory (recall and evaluation) are not suited to post trial instructions and
many US states enable, or at least do not preclude early instructions,
although studies do not focus on the type or nature of direction in
details.142
In England and Wales, the Auld Review143 recommended that the
jury be given a brief narrative containing the matters of fact in issue
and a list of likely questions for their decision at the outset of a trial.
Similar recommendations in New Zealand are discussed by Young144
although the scope of specific judicial directions, namely the evidence
of eyewitness testimony, cannot be given in advance, other than in the
broadest of terms. Given that a general warning in relation to eyewitness evidence is not favoured across the Commonwealth jurisdictions, a specifically tailored direction cannot be issued prior to the
evidence being adduced in court.
Marder145 discusses further innovative tools to present jury instructions such as video recordings, notebooks and other methods for
assisting jury deliberations.
139 L. Heuer and S. Penrod, Instructing Jurors: A Field Experiment with Written and
Preliminary Instructions (1989) 13(4) Law and Human Behavior 409.
140 Ibid. at 429.
141 Ibid.
142 J. Goldberg, Memory, Magic and Myth: The Timing of Jury Instructions (1981) 59
Oregon Law Review 451.
143 R. E. Auld, Review of the Criminal Courts of England and Wales (HMSO: London,
2001) ch. 11 at 521.
144 Ibid. at 682.
145 N. Marder, Bring Jury Instructions into the 21st Century (2006) 81 Notre Dame
Law Review 449.
335
IV. Conclusions
The wealth of both legal and psychological research suggests that
there are many more factors influencing the accuracy, or otherwise, of
eyewitness identifications. Irrespective of whether pattern instructions or mandatory warnings with discretionary scope are employed,
both counsel and the Bench are required to have an in-depth understanding of the types of factors that may be pertinent to each case, on
a case-by-case basis. It may be that influencing factors are not
touched upon during the trial and are therefore not brought to the
attention of the jury or fact finder. In such scenarios, model or pattern
instructions may be limited in their scope and potentially miss a critical factor that may have a significant bearing on the reliability of an
eyewitness. Therefore, the judge must take a more active role when
formulating an appropriate warning.
This article has reviewed and analysed the approach taken by several Commonwealth jurisdictions to address the issue of eyewitness
identification evidence. No single approach was seen to provide the
most effective and robust method to guard against mistaken eyewitnesses. Rather, the authors have developed a paradigm based
upon a number of elements of best practice which appear to conform
to psychological models of identification. Research findings across
various jurisdictions can and do serve to inform future developments,
yet empirical or clinical research data is often confounded by bars on
jury research. Further research and analysis in the area of eyewitness
reliability and assessment is required to aid the development of effective safeguards.
In sum, the authors favoured approach combines elements from
several jurisdictions. Firstly, the suggestions made by the English Law
Revision Committee and Devlins Home Office Report in relation to a
statutory obligation to warn a jury, have not, yet should have been
implemented to safeguard against cases of mistaken identification.
Secondly, the Australian model Evidence Act provides an exemplary
statute in respect of the broad scope of a requirement in all cases, yet
is deprived of that positive effect following judicial interpretation.
Thirdly, the procedural approach taken by South Africa in formulating a jury direction that reflects the breadth of factors applicable to
eyewitness identifications is to be commended. Such a combination
would provide a paradigm model which could form the basis of
further research.
336

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An Examination of Criminal Jury Directio

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An Examination of Criminal

Jury Directions in Relation to

Abstract This paper presents an analytical review of judicial directions

Research Fellow, Joseph Bell Centre, Glasgow Caledonian University.

COMMON LAW WORLD REVIEW

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

6 [1975] QB 834; [1975] 1 All ER 70; 60 Cr App Rep 80.

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other similar provisions ensuring the legislative independence of imperial realms.

II. Review of the Development of Eyewitness

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

Morris of Borth-y-Gest stated that though specific words such as

The House of Lords refused leave to appeal, thereby reaffirming the

COMMON LAW WORLD REVIEW

to the witness.20 No action was taken on this recommendation of the

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

COMMON LAW WORLD REVIEW

the visibility and lighting conditions at the material time;

Interestingly, these eight factors reflect the Magistrates Association

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

a warning is whether an identification may be, or is argued to be

COMMON LAW WORLD REVIEW

Accordingly, the Turnbull Rules are more limited in scope than

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

sufficient to entitle the accused to succeed in his appeal to have the

37 The People v Pringle (1981) 2 Frewen 57.

COMMON LAW WORLD REVIEW

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

In his dissenting argument, Aylesworth JA concluded that the charge

In addition, the Supreme Court of Canada in Vetrovec v R53 noted that

COMMON LAW WORLD REVIEW

against the accused depends on eyewitness identification evidence

Above n. 46 at para. 45.

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

descriptions; failure of another witness with equal opportunity to recognize accused.

The CRIMJI instructions are substantially similar and are therefore

60 Above n. 46 at 219, per Wood J.

COMMON LAW WORLD REVIEW

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

If identification evidence has been admitted, the judge is to inform

This requires a statutory warning, similar to that recommended by the

Evidence Act 2001 (Tas).

COMMON LAW WORLD REVIEW

relevant acts, or as the person omitting to do the relevant acts is in

This opinion appears to start with a broad requirement for a judicial

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

COMMON LAW WORLD REVIEW

Turnbull is referred to in New Zealand case law and clearly provided

Despite having a statutory warning, the appeal courts still refer to

In 1991 the New Zealand Law Commission published the first of a

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

Commentators did not support such an approach, arguing in favour

COMMON LAW WORLD REVIEW

identify the perpetrator in a line-up and two secondary witnesses

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

COMMON LAW WORLD REVIEW

A cautionary rule can be seen as a direction designed to warn a jury

The accuracy of a witness will depend on their eyesight.

EYEWITNESS IDENTIFICATIONS AND THE PRACTICE OF JURY DIRECTIONS

The strength of the memory.

All of the Turnbull factors are introduced, however the introduction of

COMMON LAW WORLD REVIEW

The extent to which eyewitness evidence has been discussed under

S v Webber (1971) (3) SA 754 (A).