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(Inspired by Can a lawyer subject the court to a (temporary) ruse for a legitimate purpose?)

Under which circumstances are witnesses asked to identify people present (in particular defendants) in the courtroom?

  • In which jurisdictions is this a thing? (I know it happens in the US; what about the UK, etc?)
  • Are there rules mandating it (either local court rules, statutes, or jurisprudence), or is it something the parties may choose to do or not? If the parties choose, why would they do or not do it?
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  • I believe that such in-court identification were once common in US courts. I know they are a staple of fictional courtroom drama, I am not at all sure how procedures have changed on this in recent years. I have been present when an expert testified on the limits of eyewitness identification, But I don't think most US jurisdictions have the sort of mandated procedures for this described in other answers about commonwealth countries.
    – David Siegel
    Jan 2 at 22:53
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    I personally know a defendant who was asked by his last name to enter say court room A, found himself very confused by the accusations, and it took a few minutes to figure out that they actually wanted a different defendant with the same last name and he should have gone to court room B :-). I wonder if it is theoretically possible that two defendants could go free because none of the witnesses recognises them.
    – gnasher729
    Jan 2 at 23:31
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    Maybe there is a difference between "identify that person over there" and something else I have seen in a courtroom, "do you see person X in this room and if so, point to them".
    – usul
    Jan 3 at 0:50
  • I have seen a mafia-life movie (could not remember which or easily find it, sorry) where the main character ends up flipping and "ratting out" the other mafiosi. They show what is supposed to be the start of the trial and the questioning goes "Do you know Mr. X? Yes. Do you see him in court? Yes. Can you point to him? (points at X) Here. (to the jury) Please note that the witness correctly identified Mr. X". I thought it unnecessary: the main character has known Mr. X for years and that is undisputed knowledge, the only factual disputes are going to be about whether X ordered crimes etc.
    – KFK
    Jan 3 at 12:24
  • Am I supposed to accept any of the answers? They all seem to me equally valid, just for different jurisdictions.
    – KFK
    Jan 3 at 12:25

4 Answers 4

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In Canada, this is called "in-dock" identification and, while not prohibited, it is recognized to have very little probative value. It has "particular frailties over and above the normal frailties attaching to identification evidence" and "adds little" (R. v. Izzard (1990), 54 CCC (3d) 252, pp. 255-56 (Ont C.A.); R. v. F.A. (2004), 183 CCC (3d) 518, para. 47 (Ont. C.A.)).

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This is commonly referred to as "dock identification" and is governed by s 45 of the Evidence Act 2006 with further enunciation in Harney v Police [2011] NZSC 107 at [26]–[28].

Basically, it is considered banned because visual identification has to be conducted according to a "formal procedure", and identification by witnesses in courtrooms falls well short of those formalities.

The only exception is when there is "a good reason for not following a formal procedure" — the scenarios (a)–(f) listed in s 45(4).

Harney v Police adds another "good reason" — in a nut shell it is when the defendant is well known to the witness:

[26] We are satisfied that where the visual identification evidence takes the form of a recognition by the eyewitness of someone already known to the witness ... that can constitute a further good reason for not following a formal procedure. ... [T]he formal identification procedures in subs (3) are primarily directed towards identification of strangers and the risk factors differ with identifications of persons previously known to the witness. ...

[27] It does not follow, of course, that merely because identification evidence takes the form of recognition of a person known to the defendant, that factor will necessarily provide a good reason for dispensing with a formal procedure. It will not do so unless the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged offending that a formal procedure would be of no utility. ...

[28] The sufficiency of the familiarity of the witness with the defendant's appearance and the utility of a formal procedure need to be gauged in the individual case. ... There can be, however, no formulaic requirement, such as that the defendant must have been "well" known to the witness. The degree of prior contact or knowledge of appearance, and its sufficiency, must be assessed in each case taking account of all the circumstances.

In practice, however, parties may have hard times trying to convince the judge that there is (or isn't) a "good reason" to allow dock identification. Given the vagueness of the above passages by the Supreme Court, the rationales for/against dock identification are hard to argue and so are easy to sway either way.

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  • I would think a "good reason" in most cases would defense willingness to stipulate that the witness would be capable of correctly identifying the defendant in a formally-conducted lineup, though I would think the wording might be better expressed as something like "And just to be clear, we're talking about the person over there at the defense table, correct?"
    – supercat
    Jan 3 at 17:48
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In a similar vein to the other answers for Commonwealth jurisdictions, a Dock Identification is possible but rarely allowed in the Crown Court. That said, a magistrates' court may consider using it for expediency for summary trials.

The Crown Prosecution Service offers this:

Dock Identification

This term refers to the identification of the accused for the first time during the course of the trial itself, by a witness who has not previously named him or identified him by means of a Code D procedure.

In view of the dangers posed by dock identification, the CPS and Attorney General’s Office have undertaken, in relation to offences on indictment, that:

“The [prosecution] … will not invite a witness to identity, who has not previously identified the accused at an identity parade, to make a dock identification unless the witness's attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances”

As a result, a judge will normally prohibit any such identification during a trial on indictment but different considerations may apply in minor summary offences.

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There are strict limits on visual identification evidence

This comes from Part 3.9 of the Evidence Act which is based on a uniform law across all states, territories, and the Commonwealth.

Visual identification evidence (including in-dock identification) is permitted only when it was part of a properly conducted police line-up, it was reasonable in the circumstances that there was no line-up, or where the defendant refused to participate in the line up after receiving legal advice.

Even when it is admissible, the judge must instruct the jury of its low probative value and advice them that they must consider such evidence cautiously before assigning it any weight.

Exceptions apply when the defendant’s identity is not an issue at trial, or when the defendant is previously well known to the witness.

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