A Manitoba jury has become the first to hear expert testimony about the shortcomings of eyewitness identification - a form of evidence that has been at the root of many wrongful convictions.
A ruling earlier this year ended decades of adverse court decisions that allowed jurors to rely on their own instincts in deciding whether an eyewitness is deluded or confused or forgetful.

"Eyewitness identification is inherently frail, yet it can have an overwhelming impact on juries," Mr. Justice Murray Sinclair of the Manitoba Court of Queen's Bench said in the ruling. "The science and research on eyewitness evidence has improved vastly in the last little while."

Judge Sinclair said that memory can be subtly shaped or distorted by the effects of stress, police suggestion or questionable photo lineup practices; changes in lighting; the effect of drugs and alcohol on eye muscle control; or the distracting presence of a weapon at a crime scene.

"It seems ironic to me, given the inherent frailties of eyewitness evidence and its acknowledged, overwhelming impact on a jury, that an accused person should be denied a valid tool on which to challenge it," he said.

Rendered last spring during a pretrial motion at a Winnipeg murder trial, the ruling was under a publication ban. The ban was removed recently when defendant William Henderson was convicted in the first-degree murder of Frehley McKay.

Martin Glazer, Mr. Henderson's lawyer, yesterday called the ruling "an insightful victory for trial fairness. It is an important legal precedent that will help to prevent wrongful convictions in Canada by making sure that juries are educated about the proven problems associated with eyewitness identification evidence."
Toronto defence counsel Jonathan Dawe said that the decision should pave the way for the routine use of expert testimony about the unreliability of eyewitness evidence.

"Most lawyers and judges are aware of the frailties of eyewitness identification, but most jurors won't have had any prior reason to study the issue," he said. "This is an area where intuition and personal experience can be very misleading."

Mr. Dawe said that eyewitnesses are especially hard to shake in cross-examination because they tend to be honest people who believe in what they are saying. "It is critical that jurors understand that eyewitnesses' confidence in their identification isn't a reliable indication that they have actually picked the right person," he said.

The bulk of the evidence at Mr. Henderson's trial involved observations by eyewitnesses who allegedly saw a barroom altercation between Mr. Henderson and the victim several hours before the killing.

Judge Sinclair allowed the jury to hear from Jeffrey Loftus, a U.S. psychologist with extensive experience in the storage and retrieval of information in the human memory. He described Dr. Loftus's work in the field as being, "based on sound and accepted scientific research and analysis, and therefore reliable."

Educating juries about the shortcomings of eyewitness testimony is likely to prevent wrongful convictions, Judge Sinclair said. "It is interesting that we, as judges, feel we can give judicial direction to juries without input from experts in the field. I quite frankly have my doubts about that.

"Where the proposed evidence can be shown to be outside of the common, everyday experience of lay persons, or provides evidence to overcome myths, or provides scientifically sound information that is counter-intuitive, then such evidence would, in my view, be necessary for the jury to be able to properly assess and weigh the evidence of the eyewitnesses."