August 28, 1998
Cross-examination inspired by Georges Simenon
Ontario Court of Justice (Provincial Division)
[1.] Scant authority is required in support of the general proposition that identification evidence is fraught with intrinsic frailties to such an extent that eyewitness testimony is considered to be inherently dangerous. Indeed, the Law Reform Commission remarked that
... psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense. organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.
[2.] If it is thus obvious that identification evidence is inherently unreliable, and that the jury will be instructed accordingly prior to evaluating the testimony in question, what other steps might defence counsel consider with a view to further undermining the value of such evidence at trial? In other words, how may so-called "eyewitness" evidence be challenged in a court room? In this article, attention will be drawn to a number of themes that might be explored with profit during cross-examination of the honest but unreliable or mistaken observer. In the words of Simenon, the witnesses to be cross-examined are assumed to be conscientious and not the less than candid witnesses described by Mr. Justice Moldaver in R. v. Anderson,  O.J. No. 2059 (Gen. Div.).
[3.] Of note, these themes are not selected from case law; to the contrary, they are inspired by the novels of Georges Simenon and have been selected by reason of their self-evident instruction on the question of how individuals "fill-in" the blanks of their perception and memory of events. It is my view that the world of the fiction writer is an ideal source of common sense examples that may be discussed with witnesses in an effort to get them to agree that they could not have seen or heard what they believe they have perceived. Of course, it goes without saying that if the witness may not be brought to doubt the accuracy of his observations, the trier of fact may be led to this conclusion as a result of observing the exchange.
a) The presence of a distinguishing feature:
[4.] Not uncommonly, the outcome of a prosecution may turn on the presence or absence of a signal identifying feature. For example, what Crown would not wish for a witness, described as completely self-assured, for whom misgivings are unknown, who is able to state with absolute certainty that the person observed had a remarkable birth-mark, as in the case of Maigret in Montmartre.
[5.] It is suggested that one tactic would be to focus solely on the distinguishing aspect, let us say a mole. Counsel should ask a number of questions in order to demonstrate that the witness must have taken particular notice of such a feature. If, on the one hand, it becomes obvious that she can supply abundant details in the description to the point that the witness will profess to be able to recognized the mole standing alone, she may then be led to concede that they could not have gained (and retained) an equally detailed memory of the other less distinctive features. At that point, a number of photos of moles (or of the particular physical trait in question) may be produced and the witness invited to select the correct one. Not unlike the classic question asked of the witness who had a gun pointed at her head, likely she either stared at it or her assailant, but not both.
[6.] On the other hand, if the witness is unable to point out anything precise about the unusual feature, she may be led to concede that all she can state with any certainty is that there was some kind of mole, or blemish, or pimple, or cut, etc. Counsel would then attempt to have her agree with the suggestion that what she recalls is that there was something distinctive, but that she cannot describe anything particular about that distinctive feature, if you will excuse the redundancy. At that point, it will be suggested that she cannot recall anything else out of the ordinary about the person in question save for some kind of mark which is not unusual in general terms.
[7.] At bottom, whether the witness is attempting to describe a tattoo, a mouth like that of a frog, unusual yellow shoes, a scar, a space between the teeth, a harelip, a beauty spot, or marks caused by smallpox, may it be said that the feature observed is so distinctive that it may be described without reference to any other aspect of the person in question? Is the witness able to select such a feature from a representative sampling? Is the witness able to say what was so distinctive about one "gap-tooth" smile that it could not be mistaken for another? Is it a remarkable tattoo in which the whole may be described or is simply a less common but not particular form of the well known "Mother"? If not, he or she should be invited to comment on the likelihood that, in fairness, the feature observed is similar to a feature found on the person of the accused.
b) The absence of a distinguishing feature:
[8.] Consider this example taken from fiction. The witness is asked, "Would you know him again?" He replies: "I've only seen his back." The reply: "Backs are quite easy to recognize." He then states: "I'm not sure. Perhaps." If this witness is later called to testify and is heard to suggest that your client's back resembles the person in question, perhaps as a result of a normal desire to assist the authorities who must have other information suggesting guilt if the accused was charged, it may be advantageous to cross-examine in this fashion. Prepare a number of subtle questions that result in elevating the general observations of the witness to a high degree of assistance. He should be made to agree that by reason of his observations, there is no doubt but that it was a mature man, not a child and not an elderly person; that the person was neither quite slim nor obese; that the person was not dressed in an expensive suit or a t-shirt; that he wore a watch and did not smoke; that he was neither tall nor short, etc.
[9.] Once the witness has been led to agree with a number of similar suggestions, he may begin to identify with counsel who is making him appear of assistance to the jury. At that point, being far less wary of defence counsel and wishing to be fair, he may be asked a question such as this: "You had no idea just noticing this person as you did," which suggests that the observations are significant but based on very little, "that you would end up in Court?" The witness may well agree with the suggestion. You then should attempt to make plain how your client was different from the "neither young nor old", "neither slim nor overweight", "neither well- nor shabbily-dressed" ... person observed by the fact of being an average-looking person. At the end of the exercise, the witness should agree that your client looks, in effect, not unlike so many others who might be enjoying a meal at that very restaurant at the moment.
[10.] As stated in L'escalier de fer, why should anyone take account of someone who looks like millions of others and who is not remarkable by the presence of a distinctive feature. Les nouvelles enquêtes de Maigret sets out the comment that "... Jehan d'Oulmont had nothing particular about his features and thus people to whom his photograph was shown would promptly identify someone else."
[11.] In effect, leaving aside the unusual case of objective identification evidence, for example, a bite-mark in an apple revealing not only the pattern of the teeth but a distinct dental impression, counsel should be confident in any cross-examination in cases in which no such truly distinguishing feature is present. One suspects that most witnesses will identify with the harried individual in Maigret in Montmartre who was asked "But you think you caught sight of him a few weeks ago. What did he look like?" and who remarked "All you policemen seem to think that whenever one passes a man in the street one notices everything about him". If you think of it, a general description taken from Maigret and the Minister that a person is "Middle-aged. Somewhat stouter than average..." amounts to very little but it may be conducive to a fertile cross-examination. How does the witness define middle-age? Surely a 22-year-old defines it quite differently from the view of a 40-year-old or of a person born 60 years ago. How does she define "stouter than average"? In this respect, attempt to underscore that one's view of the world depends on how little we know of it. In other words, whether the witness is a young male or female, their age and health may render them susceptible to quite negative views of others. Unlike some of the jury members, they may not be very sympathetic to middle age downward gravitational pulls and might be led to exaggerate the seemingly poor physical shape of the suspect.
[12.] In the same vein, a person's ability to identify an average person may be impaired by other factors, notably the number of other individuals who pass by and who share a common feature. For example, if an event occurred in a fitness centre, it may be difficult to distinguish between the Nike-clad Reebok-skirted Adidas-shod members milling about. If the event involved young skate boarders, or bicycle messengers, or Armani-suited articling students, or Spice Girl fans, it may be of assistance to ask the witness to attempt to distinguish between these individuals by presenting photos of such groups in the court-room. In such cases, do we really notice the individual features, the person should be asked, or the common qualities of clothing or hairstyle, etc?
[13.] So far, it has been assumed that the witness is familiar with the mode of dress discussed above. Turning then to a slightly different question: what ways may one challenge the purported identification of a person within a group, all of whom are dressed in an unfamiliar fashion? Let us take for example a procession of young communicants. In my view, the witness should be asked to provide as much detail about her observations with a view to emphasizing how attention was drawn to the group. If the witness is able to describe the group in great detail, the questioning will then focus on her ability and opportunity to notice one person in particular. It would be surprising, it is suggested, that any particular individual stood out, at least until such time as an event occurred.
[14.] I note that Simenon was of the view that certain groups of employees, retired people who stare out of their windows all day long, waiters and "concierges" in particular, of whom there are too many examples to list, were unusually gifted in their opportunity to observe those about them. As observed in Signé Picpus: "Clerks in stores and maids are in the habit of taking note of cars that are unusual". In my experience, many of these individuals are more than willing to admit that they are so preoccupied with carrying out their duties that they would be hard pressed to take particular notice of people unless something quite striking occurred. In this respect, they echo the comments of the "concierge" in Maigret and the Hotel Majestic when asked if she recognized the suspect: "Er... Frankly, I don't! I couldn't say for sure. I see so many people!". A further example is taken from Les dossiers de l'Agence O. The ticket attendant is unable to identify anyone, explaining that the events took place during the "grande presse," that is to say the rush hour.
[15.] Identification evidence of someone previously unknown in either a situation of stress or, not surprisingly, in a situation in which nothing appears to have occurred that is noteworthy, is inherently frail and must be challenged vigorously to ensure that no miscarriage of justice will ensue. It is the duty of counsel to pursue such issues forcibly lest findings of guilt be based on a lesser and unjust standard of proof, as was illustrated by Simenon in Maigret and the Minister: "If he answers to the description I've given you, if he smokes cigars and meddles in politics there's every chance he's my man."
See R. v. Miaponoose (1996), 2 C.R. (5th) 82, 30 O.R. (3d) 419, 93 O.A.C. 115, 110 C.C.C. (3d) 445 (C.A.). Consider also the more recent comments of the Court of Appeal in R. v. McIntosh (1997), 35 O.R. (3d) 97, 102 O.A.C. 210, 117 C.C.C. (3d) 385. On behalf of Labrosse and Austin, JJ.A., Mr. Justice Finlayson wrote, at p. 394 [C.C.C.], para. 19: "We should all be reminded of the frailties of identification evidence." Simenon was in the same "boat", it seems. In Maigret à l'école, Tout Simenon 7, Presses de la Cité, Paris, 1989, at p. 225, one reads: "There are images that one records unwittingly, with the precision of a camera, and later on we may be able to recall them...". See R. v. Miaponoose, supra, at para. 11. See Maigret and the Headless Corpse, Avon, New York, 1971, at p. 102. Translated by E. Ellenbough from Maigret et le corps sans tête, Tout Simenon 8, Presses de la Cité, Paris, 1989, at p. 63. I propose to alternate references to the gender of the witness. Penguin Books, Harmondsworth, 1963, at p. 82. Translated by D. Woodward from Maigret au Picratt's, Tout Simenon 5, Presses de la Cité, Paris, 1988, at p. 288. I suggest People magazine as a reference tool. See Feux rouges, Tout Simenon 6, Presses de la Cité, Paris, 1989, at p. 774. See Monsieur Gallet, décédé, Tout Simenon 16, Presses de la Cité, Paris, 1991, at p. 25. See The Sailors' Rendez-Vous, Penguin Books, Harmondsworth, 1970, at p. 21. Translated by M. Ludwig from Au Rendez-Vous des Terre-Neuvas, Tout Simenon 16, Presses de la Cité, Paris, 1991, at p. 654. See Les 13 Énigmes, Tout Simenon 18, Presses de la Cité, Paris, 1991, at p. 67. See L'Outlaw, Tout Simenon 22, Presses de la Cité, Paris, 1992, at p. 625. See Le petit docteur, Tout Simenon 23, Presses de la Cité, Paris, 1992, at p. 682. See Les dossiers de l'Agence O, Tout Simenon 24, Presses de la Cité, Paris, 1992, at p. 320. See Maigret and the Hotel Majestic, Harvest/HBJ, Orlando, 1982, at p. 132. Translated by C. Hillier from Les caves du Majestic, Tout Simenon 23, Presses de la Cité, Paris, 1992, at p. 381. Maigret in Montmartre, Penguin Books, Harmondsworth, 1963, at p. 13. Translated by D. Woodward from Maigret au Picratt's, Tout Simenon 5, Presses de la Cité, Paris, 1988, at p. 235. Tout Simenon 6, Presses de la Cité, Paris, 1989, at p. 743. Tout Simenon 24, Presses de la Cité, Paris, 1992, at p. 958. See Les dossiers de l'Agence O, Tout Simenon 24, Presses de la Cité, Paris, 1992, at p. 320. Penguin Books, Harmondsworth, 1963, at p. 104. Translated by D. Woodward from Maigret au Picratt's. Tout Simenon 5, Presses de la Cité, Paris, 1988, at p. 305. Heinemann/Octopus, London, 1978, at p. 510. Translated by M. Budberg from Maigret chez le ministre, Tout Simenon 7, Presses de la Cité, Paris, 1989, at p. 610. See Maigret Hesitates, Harvest / HBJ, Orlando, 1970, at p. 172. Translated by L. Moir from Maigret hésite, Tout Simenon 14, Presses de la Cité, Paris, 1991, at p. 221. See Les témoins, Tout Simenon 7, Presses de la Cité, Paris, 1989, at p. 690 and The Man Who Watched The Trains Go By, Penguin Books, Harmondsworth, 1986, at p. 137. Translated by S. Gilbert from L'homme qui regardait passer les trains, Tout Simenon 21, Presses de la Cité, Paris, 1992, at pp. 662-663. The original version is more detailed in this respect. Tout Simenon 24, Presses de la Cité, Paris, 1992, at p. 402. Harvest/HBJ, Orlando, 1982, at p. 165. Translated by C. Hillier from Les caves du Majestic, Tout Simenon 23, Presses de la Cité, Paris, 1992, at p. 396. Tout Simenon 24, Presses de la Cité, Paris, 1992, at p. 228. See also Les nouvelles enquêtes de Maigret, Tout Simenon 24, Presses de la Cité, Paris, 1992, at p. 958 wherein the dubious answer provided is: "Oh my! We see so many... Possibly?...". Heinemann/Octopus, London, 1978, at p. 510. [Emphasis supplied] Translated by M. Budberg from Maigret chez le ministre, Tout Simenon 7, Presses de la Cité, Paris, 1989, at p. 611.
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