3. Prior Identifications

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 134-138

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Out-of-court identifications made by a witness may be admitted for their truth and for credibility where the witness makes an in-court identification.

Out-of-court identifications may also be admitted for their truth where the witness makes no in-court identification, but can

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testify that he or she previously gave an accurate description or made an accurate identification.

Where the identifying witness makes no in-court identification and does not testify as to the accuracy of any prior identification, then the situation is the same as if he or she has not testified. The out-of-court identification is hearsay and is not admissible under the hearsay exception for prior identification.

As a general rule a witness is not permitted to testify as to his own previous consistent statements because they add nothing to the in-court testimony. Prior statements of identification are an exception.⁸⁷This is because in-court identifications are inherently suspect. After all, the witness expects to see the perpetrator in court, and the accused usually is conspicuously present. For these reasons, the so-called dock identification is accorded little value.⁸⁸A case in point is K.G.B., where the brother of the stabbing victim identified the accused as the knife-wielding assailant. The trial judge attached little probative value to this identification, which he termed a "naked opinion given 19 months after the event."⁸⁹The problem in K.G.B. was that there had been no pre-trial identification. The courts have long recognized that witnesses should be asked to identify an accused at the earliest opportunity and under the fairest of circumstances.⁹⁰These identifications are the far better test of the witness’s evidence. Therefore, as a matter of common sense, courts readily admit prior identifications to give credence to the in-court identifications. Are the prior identifications hearsay? There is no consensus. Some courts treat the out-of-court identifications as hearsay statements, but admissible pursuant to a hearsay exception; other courts treat the statements as non-hearsay original evidence.⁹¹In the circumstances where the witness has made a dock identification and the out-of-court identification is consistent, the question really does not matter. The two identifications are intertwined. They corroborate each other and are admissible to give credence to the in-court testimony.

However, it should not be accepted that every statement of prior identification is admissible for its truth. There may be inconsistencies between the in-court testimony of the witness and the out-of-court

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statement. For example, on the stand the witness testifies that her assailant had no facial hair, but in a statement to the police she described the assailant as having a moustache. The accused at the time did have a moustache. If the...