Conviction and subsequent acquittal of Joe Webber, 30, on armed robbery charges shows fragility of eyewitness testimony

There was just a scattering of supporters but no television cameras outside a Toronto courthouse last month, when Joe Webber's armed robbery conviction collapsed.

A panel of judges found that the Aylmer, Ont., man had served 19 months for a crime he did not commit, yet they uttered just two sentences as they ended his ordeal: “The Crown acknowledges that fresh evidence overwhelmingly shows the appellant did not commit these crimes. The fresh evidence is admitted, the convictions are set aside, and acquittals are entered.”

Their words obscured a cautionary tale. Mr. Webber, 30, serves as a poster boy for how badly the justice system can go awry when a prosecution is based on little more than the say-so of an adamant eyewitness.

“It is the honest, but mistaken, eyewitness who creates the real challenge for the system,” said James Stribopoulos of York University's Osgoode Hall Law School.

Prof. Stribopoulos said eyewitnesses usually appear sincere, making them compelling witnesses, yet their evidence can all too often “be inherently flawed and completely unreliable.”

Mr. Webber was convicted in early 2008 of forcible confinement and robbery in connection with a home invasion. As his family gasped and wept, Mr. Justice William Jenkins of the Ontario Superior Court sentenced him to 7 1/2 years in prison.

The victims of the Nov. 3, 2006, home invasion – Duane and Dierdre Hicks, their 15-year-old son, and a friend – had been tied up and held at gunpoint for more than an hour by two masked robbers. Both robbers wore balaclavas, yet Mr. Hicks confidently assured police that he recognized Mr. Webber, who had done yard work at the Hicks residence several months earlier, from his eyes.

“I couldn't believe it,” Mr. Webber said in an interview. “There was no evidence whatsoever. It came down to a guy with a loaded shotgun pointed a foot from his face. How could he make an accurate eyewitness testimony, being under that much pressure?

“Duane Hicks said that he recognized my bright blue eyes from a glimpse. I don't even have bright blue eyes. I have grey eyes. … I guess the justice system needs to wake up. It doesn't give the public much confidence, does it?”

Last June, another man, Justin Perry, confessed to the crime. Mr. Perry's involvement was borne out by an accomplice, Mansa Fraser, who has also been convicted in the robbery.

Jody Berkes, Mr. Webber's appeal lawyer, said his client could easily have served his entire sentence. “What if Perry and Fraser had only come forward years later?” he said. “Or worse, never?”

Still, Mr. Hicks has not budged on the accuracy of his observation. “It was him,” the 42-year-old man said in an interview. “The minute he shoved a gun in my face, I looked down the barrel into his eye and said: ‘Joe, what … are you doing here?' I wouldn't send someone to jail wrongfully. The guy is guilty.”

Mr. Hicks was equally certain when he pointed his finger dramatically at Mr. Webber in the courtroom at his trial.

Prof. Stribopoulos praised the fact that trial judges now routinely issue warnings to juries about the frailties of eyewitness testimony, but he said the next step must be a prohibition on all in-court identifications.

“That sort of identification evidence is really worthless,” he said. “Appellate courts have recognized it as such, but there is still a puzzling reluctance to exclude it from evidence.”

Joe Bellows, a veteran B.C. prosecutor, said the eroding credibility of eyewitness evidence has not so much made life tougher for prosecutors, as it has caused all players in the justice system to become more scrupulous in evaluating it. Police also work harder to find corroborating evidence, he added.

“When I started out as a Crown, convictions were registered all the time on the basis of eyewitness identification only,” Mr. Bellows said. “In those days, judges did not caution that it was dangerous to do so at all.”

The danger is that eyewitnesses may become increasingly entrenched in their beliefs, he said: “Crimes happen quickly. They are usually very traumatic for the people who witness them. Giving evidence in court itself is a traumatic experience.”

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