Ensuring procedurally fair identification parades in South Africa

JurisdictionSouth Africa
Date24 May 2019
AuthorBobby Naudé
Citation(2015) 28 SACJ 188
Published date24 May 2019
Pages188-203
Ensuring procedurally fair
identication parades in South Africa
BOBBY NAUDÉ*
ABSTRACT
The impact of system var iables on the accuracy and fai rness of
identications made dur ing police identication par ades with reference
to the latest research is consider ed. System variables are factors th at the
crimina l justice system should control, such as the way wit ness memory is
retrieved and recorded. Th is discussion points to cer tain basic princ iples
that should ensure fair ident ication parades and shows how our cur rent
identication parade proce dures can be improved to help guara ntee a fair
trial for all accused p ersons. It is recommended that ide ntication parades
be conducted ‘blind’, sequentially, and that all ident ication parades be
videotaped. More effort should b e made to keep multiple identifyi ng
witnesses separate, and a con dence statement must be obtai ned from the
identifying wit ness directly af ter a specic identi cation is made.
1 Introduction1
Research done by the Innocence Project in the United States of A merica
(USA) has shown that eyewitness misidentication is the biggest cause
of wrongful convictions in that count ry. It accounted for more than
70% of all convictions overturned by DNA testi ng.2 The Innocence
Project points out that years of social science resea rch clearly proves the
unreliability of eyewitness identi cation and hence there is an urgent
need to treat such evidence with even greater caution than before.3 It
is accepted that there are two main categories of var iables that impact
* BIur(PUCHO), LLB(UNISA), LL D(UNISA); Professor of L aw, Unisa.
1 This art icle is based upon work supporte d nancially by the N ational Research
Foundation.
2 The Innocence Proje ct is a non-prot legal cl inic afli ated with the Benjam in N
Cardozo School of Law at Yeshiva Universit y – see www.innocenceproject.org for
more information . See specical ly Innocence Project ‘E yewitness identicat ion’
InnocenceProject, available at www.innocenceproject.org/causes-wrongful-
conviction/eyewitne ss-misidentica tion. Its main aim is to exone rate wrongfully
convicted persons t hrough DNA testing and to reform the cr iminal justice system to
prevent future inju stice. For furthe r discussion in th is regard, see E Lof tus, J Doyle
& J Dysart Eyew itness Testimony: Civil and Criminal 5ed (2013) 2-3.
3 Our courts t reat identication pa rade evidence with cautio n, since there is always
the risk of suggest ibility and fabr ication – see R v Kola 1949 (1) PH H100 (A);
S v Mthetwa 1972 (3) SA 766 (A) at 768A-B; S v Mohlathe 2000 (2) SACR 530 (SCA)
at 541d .
188
(2015) 28 SACJ 188
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on eyewitness identication: estimator variables and system var iables.4
Estimator variables can be descr ibed as factors that cannot be controlled
by the criminal ju stice system and include such apparent factors as
the light conditions at the time a cri me was committed,5 but they also
include more complex factors like race and the degree of stress a witness
experienced while seeing a perpetr ator. System variables are factors that
the crimina l justice system should control and include the ways in which
witness memory is retrieved and recorded, such as t he type of police
identication procedure.6 This article wi ll concentrate on an evaluation
of system variables with reference to identication parades in Sout h
Africa in order to evaluate the sta ndard of our current procedures.7 This
evaluation is done with a focus on the current di scourse in the United
States of America, where eyewitness identicat ion issues have been
topical for some time and where the latest research in this rega rd can be
found. The discussion will show that our cu rrent police procedures, as
far as eyewitness identication are concerned, need revision and ways
to improve these procedures will be suggested.
2 System variables underlying identification parades
There are three basic ty pes of identication procedures:8 live line-ups,
photo line- ups9 and show-ups. A live line-up refers to a situation where
a group of persons that includes the suspect and non- suspects is shown
4 See generally Lo ftus, Doyle & Dysar t op cit (n2) 15 etc; G Wells & E Olson
‘Eyewitness testi mony’ 2003 (54) Annual Re v Psychol 277 at 280 -290; A Trenary
State v Henderson: A mo del for admitting eyew itness identicat ion testimony’
(2013) 84 Univ Colo LR 1257 at 1265ff; R Lindsay et al (eds) Handbook of Eye witness
Psychology vol 2 (2007) Par t II and Part III. Also see the de cision by the New Jersey
Supreme Court in St ate v Henderson 27 A.3d 872 (N.J. 2011).
5 See generally Trenar y op cit (n4) 1274ff.
6 See generally Trenar y op cit (n4) 1265ff.
7 Some shortcomings a s far as system vari ables are concerned were previou sly
pointed out by A Rust & C Tredoux i n ‘Identication para des: An empirical s urvey
of legal recommendat ions and police practice i n South Afr ica’ (1998) 11 SACJ 196-
212. This was done before t he National Instruction 1 of 20 07 was issued in order to
regulate identi cation parades in South Afric a. An evaluation of estimator vari ables
with reference to the Sout h African sit uation was done by L Meintjies Van der
Walt in ‘Eyewitness evidence a nd eyewitness science: Whe ther the twain sh all
meet?’ (2009) 22 SAC J 305. See also E Du Toit et al Comm entary on the Crimin al
Procedure Act (Revision Service 52) (2014) 3-23 where our curre nt identication
procedures and prac tices are compared to tho se contained in the ‘Co de of practice
for the identication of p ersons by police ofcer s’ that accompanies the Police and
Crimina l Evidence Act of 1984 and which applies in England and Wales.
8 Cf s2 of the Innocence Proj ect ‘An act to improve the accurac y of eyewitness
identications’ (1995) Innocence Project, available at http://www.innocenceproject.
org/free-innocent/improve-the-law/EW IDPrescriptive Model Bill2015.pdf.
9 About photo-identi cation parades – see S v Moti 1998 (2) SACR 245 (SCA); S v Ndika
Ensuring procedurally fair identication
parades in South Africa 189
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