Eyewitness testimony is often rightly suspect

The late U.S. Supreme Court Justice William J. Brennan, Jr., in his dissent in the Watkins v. Sowders case said that witness testimony is evidence that juries seem most receptive to, and are not inclined to discredit. His position in that case is sadly quite true. Many innocent defendants in the past were wrongly convicted on faulty eyewitness testimony and I suspect many even in our current era are subjected to this kind of erroneous testimony.

                             

The Innocence Project, a non-profit organization which has worked on using DNA evidence in order to reopen criminal convictions that were made before DNA testing was available as a tool in criminal investigations, states that “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.”

Does this mean that eyewitness testimony shouldn’t be accepted in trials? Of course not but there is an onus on the part of the trial judge to advise the jury that such testimony should be considered only after the jury is given instructions by the judge that such testimony can be flawed. 

Here is a real life example of eye witness testimony flaws. It is the Harris and Adams case. A police officer pulled over a vehicle at night to let the driver know that his headlights were turned off. The driver (Harris) pulled out a gun and shot the officer dead. The police believed that Harris was the shooter and he was found a month later. However, he denied that he shot the officer. Harris claimed he was only a hitchhiker and it wasn’t him who was driving the car.  He claimed he was innocent.

Unfortunately, three witnesses to the shooting claimed they saw Adams shoot the officer because Adams had a mustache and long hair which fitted their collective concept of what a violent killer would look like. Although Harris confessed that he stole the car and the loaded handgun, it was Adams who was convicted for the murder because the three eyewitnesses testified in court that they saw Adams shooting the officer and not Harris.

  

Years later, the previously freed Harris was charged for a different murder and he confessed while on death row that he also shot the police officer twelve years earlier. Adams was finally released after serving twelve years in prison.  Each of the three witnesses had pointed their finger at the wrong person sitting next to his defence lawyer in the courtroom because when they saw Adams the first time with the mustache and long hair, he looked more like a killer than Harris did. Adams was lucky that he wasn’t executed for a crime he hadn’t committed.  How is it that three different witnesses would point their fingers at the wrong person?

Remembering events and faces

Human memory doesn’t bring up images of a person or an event such as from a video or photo camera that can automatically bring up a clear picture at one’s whim later in time. Our memories are often distorted by our view of things and other factors. If we are missing a piece of the picture when trying to remember something, our minds will inadvertently and unintentionally replace it with something else.

Consider this situation where you will have a skewed memory. It is dark outside when the officer pulls the car over, therefore you can only see parts of the shooting occurrence. Your mind can fill in those dark spots with other views of the scene when you try to remember the shooting occurrence at a future time.

Further, another problem can be the biased questions that police investigators ask you. For example if the investigators have seen the suspect in custody, the investigator’s questions to you may be biased by the suspect's true description such as asking you if the shooter had a mustache and long hair. Unknowingly, the officer might even make hints as to whether you are on the right track for describing a similar description of the suspect. This is why the investigators conducting the interview of the witnesses should not see the suspect before they conduct the interview. This way, your answers with respect to what you saw will not be swayed by what the investigators will suggest to you during the interview.

  

Remembering faces at trial

Another problem of false eyewitness testimony is brought about by asking the witness on the witness stand to point to the person in the courtroom who shot the police officer.  The accused is either sitting in a box guarded by police officers or is sitting next to a defence lawyer.  The first thing that comes to the mind of the witness is that such a person has to be the shooter, otherwise, why is he in the box or sitting next to the defence lawyer?

The witness believes that the police and the prosecutor would not go the trouble to accuse and prosecute that man unless they had other evidence showing that he was the shooter. That belief is what convinces the witness that that man he or she is about to point a finger at is the one who shot the officer so the witness points his or her finger at the man—someone who in actual fact is totally innocent.

Many years ago, when I was still practicing law, I represented a man in court who was facing a trial for a hit and run incident. In Canada it is called Fail to Remain. He told me that he didn`t even own a car and had never borrowed or rented a car. And yet, he was going to face an eyewitness who was going to swear in court that my client was the driver of the car that seriously injured a pedestrian crossing the street and didn’t stop to offer aid as required by law.

Before the judge arrived in the courtroom, many people were outside the courtroom as witnesses and defendants. I told my client to step away from me and when the courtroom door is opened, he was to sit somewhere in the second row. I also told him not to get up when his case is called until I tell him to do so.  

  

I then began looking for anyone that had the same build and colour of hair as that of my client. When I found such a man, I began talking to him and he told me he was a witness in another case and was nervous at being a witness. I told him the procedure and then I talked about my client’s case as I moved the man closer to the eyewitness who was going to give evidence against my client. I recognized that he was the witness because I saw him at court earlier on a day when the trial date was set. My client wasn’t at that hearing since the Crown (prosecutor) wasn’t proceeding against my client by indictment. The witness who was going to testify on the day of the trial   kept close to us while I talked with the man resembling my client. The reason he approached me is often because witnesses forget what the people they are going to testify against actually look like so they want to refresh their memories. Meanwhile I talked about a hit and run case to the man looking similar to my client.

When the courtroom doors were opened, I guided the man I was talking to the third row and I sat with him on that row’s bench. I knew the order of the cases to be heard and the case he was to give evidence in was three cases after my client’s case. The witness who was going to testify against my client overheard me discussing my client’s case as he sat behind us.   

                                                                                      

When my client’s case was called, I walked to the counsel table and sat down. My client remained where he was seated in the second row. I then stood up and addressed the court after telling the court who I was and who I was representing.

I said, “Your Honour. I am representing Jacob Hughes (not his real name) and because eyewitness testimony is so important in this case, I am asking the court to let my client remain in the body of the court until I call him to be with me at the counsel table.”

The judge agreed. If he hadn’t and the witness pointed at my client who was sitting next to me at the counsel table as the driver of the car, it would have been grounds for an appeal and I am sure the judge knew that.

When the prosecutor asked the witness to point to the driver of the car that hit the pedestrian, he pointed to the man whom I had been talking to earlier. The crown asked the witness to step out of the witness box and walk to the railing that separates the spectators from the tables in front of the railing. The witness then pointed to the man I had been talking to earlier and when the prosecutor asked him if he was sure that man was the driver of the car, he replied, “Absolutely!” after he glanced at my client first  who was directly in front of him in the second row.

When it was my turn to ask the witness questions, I asked, “Is it possible that you could be mistaken. He replied, “Absolutely not! The man I pointed my finger at is definitely the man whom I saw driving the car that hit the pedestrian on Wilson Avenue and drove off without stopping.”

I then asked a second question. “Is there any possibility that you might change your mind and identify someone else as the driver?”

                   

He replied in an angry voice. “Why would I do that when I have positively identified the man who hit the pedestrian with his car and drove off?”

I then turned around and asked the man I previously had spoken to, “Sir. Would you please stand up?” He did and then I asked him, “What is your name, Sir?” He gave it and it certainly wasn’t the name of my client. Then I asked him, “Why are you in this courtroom today?” He replied, “I am a witness in another case that has yet to be heard.”

I then turned to my client and with a motion of my hand upwards, I said,  “Please stand up, Sir.” When he stood up, I asked,   “Would you please tell the court your name and why you are here?”  He replied, “My name is Jacob Hughes and I am the defendant in this case.” He then walked to my table as previously instructed by me.

Suddenly the witness on the stand yelled out while pointing his finger at my client, “That’s the man I saw driving the car!”

I retorted angrily, “Too smart, too late. Then I turned to the judge and began, “Your Honour….”

  

He interrupted me and said, “It isn’t necessary, Mister Batchelor. Notwithstanding that the witness has positively stated that the person whom he identified as the person who was driving the car and even pointed his finger at that man when he was up close to him; was definitely not the defendant. I will not permit the witness to change his mind after having seen the defendant in this case and after hearing him identifying himself.”

When he asked the prosecutor if he had any other witnesses or evidence to present to the court, the prosecutor said he had nothing else. The judge dismissed the case against my client. He then adjourned the court until after lunch.

While I and my client were in the lobby, the witness approached us and said to me angrily, “You tricked me!”

I replied with a smile on my face, “Of course I did.”  Then after a brief pause, I asked him, “If my client was actually sitting next to me at the counsel table, would you have identified him as the driver?”

He replied, “Of course I would because then I would have recognized him.”

“No, you wouldn’t,” I replied, “because when you were at the railing, you were just a three feet (a metre) from my client and you didn’t recognize him then and he and you were looking at each other for a few seconds before you pointed your finger at the wrong man as being the driver of the car.”

My client didn’t get off scot free from a crime he was accused of committing because he didn’t commit the crime. He couldn’t have driven that particular car that hit the pedestrian because he neither owned nor had never driven a car of his own or a borrowed car or drove a rental and further and he didn’t even have a licence to drive a car.  He got off because the only witness to the hit and run didn’t recognize him during the trial since he hadn’t seen my client driving the car that was involved with the hit and run incident

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Had my client been sitting with me at the counsel table, the eyewitness would have told the court that my client was the hit and run driver which would have resulted in my client going to prison for a crime he hadn’t committed.

This is the reason why I don’t like the idea of a defendant sitting at the counsel table or in a box when an eyewitness in the witness box is asked to identify the person who committed the crime. I think that before an eyewitness is to give testimony, the defendant should be permitted to remain seated amongst the spectators. Of course, that wouldn’t help if the police investigators are at court and have shown the witness a picture of the defendant just before the trial. 

      

This raises an interesting question. Would it be wrong to show the picture taken of the defendant after his arrest to the witness when he is in court?  

It would be no different than the prosecutor pointing to the defendant and saying, “This is the man you saw driving the car, isn’t it.” 

There is a way that this problem can be solved. The lawyers for the defendants will like it as will the prosecutors because it will solve the identity problem. I will go into that later in this piece.

I would be less than honest if I didn’t mention that a great many people have difficulty in remembering faces. I am one of them. Years ago, a man assaulted me and he was facing trial eight months later. I couldn’t identify him in court and the charge against him was dismissed. 

I later found a way to solve that problem when I later became a witness at another trial. When the perpetrator appeared in court to set a date for his trial, I looked at the car they had been driving and noted the car’s licence plate. On the day of his trial, that same person parked in the court’s parking lot. I recognized the plate number and as soon as the man left the car, the memory of his face came back to me.

The concern I have is that it is possible that an accused is the real criminal that the eyewitness actually saw committing the crime and he will beat the charge because a year later, the only eyewitness testifying in court can’t remember what the accused looked like when he committed the crime.

It is not uncommon to see a defendant in court dressed in a conservative suit with a tie and clean shaven with his hair cut when in fact, when he was seen by the eyewitness committing the crime, he was wearing a black leather jacket, had a large beard and his hair was scraggly. And as sure as God made little apples, if the defendant was sitting in court, there is no way that the eyewitness would recognize him as the person who committed the crime.

I was once the only witness to a hit and run. When the matter came to trial, would you believe it? Two women looking like the woman I saw commit the hit and run, appeared in court together. They were identical twins. The prosecutor and the investigating officer asked me which of the two women was the driver of the hit and run vehicle. I couldn’t identify which of the two women it was. Further, even the investigating officer who arrested the woman couldn’t identify which one it was he arrested. I then suggested to the prosecutor that he approach both women and tell them that he will ask which either one of them answers her name as the one accused of the crime if that is her real name. He said if that person is lying and wasn’t the driver of the hit and run car and he finds out that she perjured herself, she will be charged with perjury and be sent to prison for a very long time.  When the criminal’s name was called, she said that she was the driver of the car. She was convicted of Fail to Remain and since no one was injured, she was fined a thousand dollars and her licence was suspended for a year.

Lineups

There are three kinds of lineups. The first one is in a room where the suspect and other men who have the same kind of hair, mustache and beard (if the suspect had one) along with the same skin colour and approximate weight and height are standing in line with the suspect. The height measurements are behind each of them. The witness is behind a one-way glass window and is asked to tell the investigators which of the men is the one who committed the crime.

The second line up is called a photo-lineup. This is where the suspect’s face is taken by the investigators and placed in a small pile of other photos of similar looking men. Then the witness is asked to pick out the photo of the man who committed the crime.

Many years ago, I was shown only three pictures in a photo-line up. Two of the pictures were of the same man and the third was of someone else.  This was highly improper. Of course, I knew in advance who the man was that was included in the two pictures in the photo-lineup. The police also knew that I was a friend of the man.. Further, I knew that he was the suspect so I had no other choice but to single him out.

  

He was suspected of trying to cash a stolen cheque.  It turns out that a man owned him money and he gave my friend the stolen cheque and when my friend attempted to cash it in the bank, the police were called. He left the bank in a hurry. Then while the police were in my office, they agreed to let the man come to my office and explain to them why he tried to cash the cheque. When they heard his story and gave them the name of the man who gave him the stolen cheque, they thanked him for the information and then went after the real criminal. If you think my friend was a snitch, ask yourself this question. Would you go to jail in place of another man who set you up to take the rap for him? I don’t think you would.

The third kind of lineup is one where the suspect sits in a restaurant in which other persons who have similar features are also sitting in the restaurant. The witness accompanied by a plain clothes investigator walks through the restaurant and hopefully the witness can pick out the criminal from the others.

One day when one of my children was seven years old and was walking to school,  a man in one of the houses on the street she was walking on opened his front door of his house and stepped outside totally naked, He stared at my daughter and other children on the street as they walked by. My daughter told her teacher and after the police arrived, they questioned her and others and got a description of the man’s face. The police went to the man’s house, told him what the children had told them and said that they were going to do a lineup in the nearby MacDonalds.

After the man was in McDonalds along with three lookalikes, my daughter and the other children entered the restaurant, each with one of their parents and they casually looked at everyone in the restaurant. They picked the man whom they had seen naked. He later pleaded guilty and was put on probation for two years. He also moved from the area on his own volition.

The real problem of remembering faces

There are many possible causes of memory problems, both physical and emotional. Although memory loss sometimes signifies a long-term degenerative condition referred to as prosopagnosia (also known as face-blindness).  It is a neurological problem that impairs the way you process and remember faces. Most peoples’ brains are ‘wired’ to notice and remember human faces; but some people lack this specialized ability and have to rely on their ability to recognize and remember other things instead. These people would be terrible eyewitnesses if they had seen a crime and had to identify the criminal at a later date.  A great many people suffer from this affliction to a lesser degree. However, once they have got to know the person they have met, they generally don’t forget what they look like.

Sometimes we meet people for a very short time (perhaps a minute) and then shortly after that, we forget their faces. That is a common phenomenon that most of us have. Unless there was something that brought our attention to them, such as a large mole on the tip of their nose or they are cross-eyed, there is no reason to remember them. However, the images of their faces don’t disappear from our brains. They are simply buried in our subconscious like billions of other images we have encountered in our lives.

Healthy people of all ages experience memory problems. Those problems can be as simple as forgetting the name of an acquaintance, or as serious as forgetting the way home. Simple memory problems are sometimes caused by not paying close enough attention to what is going on. When people claim to never be able to remember anyone's name, the problem isn't usually their memory but the fact that they weren't paying attention at the time they met with the other person. Remember. Their name is in your brain. You simply can’t find the right drawer so to speak, to bring it to the fore.

Often people driving to a destination will forget how they got there because they were concentrating more on what the passenger sitting next to them was saying to them during the trip.

The dangers of faulty memories

In a trial, a witness’ faulty memories can illustrate just how vexing the supposedly simple task of facial recognition can be when a defendant’s freedom and or/his life is on the line. This is why eyewitness identification is so risky to be used as the sole basis of a conviction. A great many innocent defendants were convicted and many sentenced to death based solely on the faulty memories of the eyewitness’ testimony.

The trouble with some judges permitting the prosecutor to argue in front of a jury that the eyewitness’ testimony is sufficient to convince the jury that the defendant is guilty—is in itself, a decision that is deeply flawed. I will give you an example of a case heard by the Ontario Court of Appeal that is proof positive that such evidence should not be considered paramount in a criminal case heard during a trial.  The case involved a woman whose name was Kaylei Marie McDonald.

She was convicted of forcible confinement, robbery with a weapon, and break, enter and theft  following a trial by judge and jury. She was sentenced to 48 months imprisonment (45 months after credit for 95 days pre-trial custody). She appealed her conviction and also sought leave (court’s permission) to appeal her sentence if her conviction wasn’t overturned.

The charges against her arose from a home invasion robbery committed by two individuals at the home of Stephanie Reeves. The prime robber was male and the other was a female. Reeves and her female friend were threatened with a knife and confined on the floor. The male assailant asked the victims to tell them where to find the pills and the money. No pills were found but an electronic gaming system; the cell phones of each of the two victims and a safe box containing $500 in coins were found and stolen. No male suspect was ever apprehended or identified.

Approximately six weeks after the robbery, Reeves saw McDonald in a 7/11 store and identified her as one of the robbers. The store clerk took down the license plate number of the car MacDonald was driving and she was later arrested and charged by the police. A few days later, Reeves picked MacDonald`s photograph from a photo lineup. Reeves reacted with some shock or surprise when she saw the photograph and identified her both as the person she saw at the 7/11 store and as the person who committed the robbery.

Reeves originally described the female assailant as, inter alia, (among other things) 5’9” tall, thin to average build, light brown hair, big brown eyes, good complexion and 18 to 24 years old. In a subsequent statement to the police, she described the assailant as having long dark hair, very dark eyes and a clear complexion. When she saw the appellant at the 7/11, she noted her height as at least six feet tall (3 inches shorter than she originally told the police) and stated that she recognized her dark eyes and cocky attitude. At trial, Reeves testified that the robber had light brown or dirty blonde hair, dark eyes and some marks on her face, which may have been acne or sores.

Now before I go any further, you can see the discrepancy in Reeves’ descriptions over a period of time. That by itself should have been a warning sign to the judge hearing the case.  He ignored it.

Evidence was led that McDonald has blue eyes. The defence pointed to inconsistencies of the eyewitness pertaining to in Reeves’ descriptions as to hair colour, height and complexion. The defence also took the position that the video tapes of the meeting at the 7/11 store were inconsistent with Reeves’ recollection. The video tapes suggested the meeting was very brief, there was no direct confrontation and there was nothing from which one could infer a “cocky” attitude on the part of McDonald.

Perhaps the real female robber was cocky and the eyewitness subconsciously transferred that cockiness in her mind to McDonald when both she and Reeves were in the store.

McDonald was as I said earlier, convicted. She appealed her conviction on three grounds. I will deal only with the one relating to the trial judge’s instruction to the jury in relation to identification evidence. I will paraphrase the ruling of the Court of Appeal.

The sole issue at McDonald’s trial was identification and the only evidence linking her to the alleged offences was that of the witness Reeves. In these circumstances, a careful instruction on identification evidence was required. In my view there were several significant deficiencies in the trial judge’s instruction to the jury on the issue of identification and the cumulative effect of those errors was fatal to McDonald’s conviction.

First, the trial judge failed to warn the jury of the limited weight to be accorded to the in-dock identification of a defendant. The trial judge’s erroneous instructions implied that the jury could find evidence of McDonald’s participation in the home invasion after the eyewitness pointed her out during the trial thereby allowing them to infer that McDonald was guilty. 

The danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. This was a serious error on the part of the trial judge that provided the jury with a direct route to a finding of guilt. 

Even though the Crown (prosecutor) did not rely on the in-dock identification in his closing address to the jury, that did not absolve the trial judge of his duty to give the proper instruction to the jury about the fallibility of eyewitness testimony.

Second, the trial judge failed to warn the jury that the photo lineup identification could have been contaminated by the identification at the 7/11 store. Reeves looked at the photo lineup within days of the meeting at the 7/11 store and the jury should have been cautioned that the reliability of her identification of McDonald as the robber could be undermined by the more recent encounter. The prosecutor pointed out that this issue was raised by defence counsel in his closing submissions. However, that did not absolve the trial judge of his duty to explain the risk of contamination.

As we all now know, the woman that Reeves pointed out in the store was not the robber she was trying to remember that had previously participated in the home invasion. She was someone she remembered who was in the store who she thought was the robber that was previously in her house.

  

Third, while the trial judge did explain to the jury that it is possible for an honest witness to make an identification error and that an apparently convincing witness can be mistaken, his instruction fell short of a caution along the lines as to the very weak link such a caution was required in the circumstances of this particular case.

Where the entire case against McDonald rested was the reliability of Reeves’ evidence as to the confidence level of a witness and the accuracy of that witness. Unfortunately for the prosecution, Reeves’ accuracy was flawed due to her discrepancies in her various descriptions as she described the real robber who was in the house and McDonald who was later in the store and as such, she inadvertently linked them as the same person.

Fourth, even the caution that the trial judge did give was undermined when he instructed the jury to “use your common sense” and to look at Reeves’ “reaction” to the photo lineup when considering the significance of what he described as certain “considerable differences” in the description she had given of the assailant.

While juries are generally encouraged to use their common sense, the very reason for special caution with respect to identification evidence is that such evidence poses problems that fall outside the common experience and knowledge of jurors. There is a risk that by using what appears to be “common sense”, jurors will give eyewitness identification weight that it does not deserve. In the circumstances of this case, the jury could have understood this part of the trial judge’s instruction to be an invitation to put weight on the level of Reeves’ confidence in her identification of McDonald, which is the very matter that the jury should have been cautioned against. Just because a witness when looking at a picture of someone she believes is the criminal, becomes shocked at the experience doesn’t mean that the person in the video is the real criminal.

A witness who honestly believes that the person he or she is looking at in a video is the real criminal can be shocked at looking at the image even if the image of the person is that of someone who is not the real criminal. That is why the judge erred when he told the jury to consider Reeves’ reaction when she was looking at the image of McDonald in the video.

Fifth, the trial judge failed to instruct the jury that the fact McDonald has blue eyes could be sufficient to exclude her as the assailant given the emphasis placed by Reeves on the strikingly dark eyes of the assailant.

The failure of defence counsel at trial to object to the charge could not justify refusing McDonald’s right to an appeal in the circumstances of this particular case.

The three members of the Court of Appeal hearing this appeal ruled that the cumulative effect of those shortcomings in the jury instruction undermined the fairness of the trial and required that the conviction against McDonald be set aside. They didn’t need to deal with her other grounds of appeal.

At the time of this writing, the Crown hasn’t decided whether or not to appeal that decision to the Supreme Court of Canada. I am not convinced that the Supreme Court of Canada will consider hearing the Crown’s appeal since these errors of the trial judge were not minor and the Crown’s case rested solely on the identification evidence that was far from overwhelming.

My proposed solution

I mentioned my concerns about identification of defendants as being criminals by eyewitnesses testifying in court long after the event of the crime has passed. I have some ideas which may solve this vexing problem.

Lineups, be they in a police station, in a public location or by photographs, should be done as follows:

First, the concentration of the witness should be on the face of the suspect which is the most important identifiable feature of any person. Once a witness states to the police which face resembles the perpetrator, a colour blowup of that person’s face should be then handed to the witness to sign. All copies will include the signature of the witness and the signature of the investigator and if the lineup was done in the presence of the suspect’s lawyer, then he also will get a copy of the signed picture after he signed the master copy. The date the picture was signed is also written on the picture. A copy of that picture is then given to the witness and a copy is given to the suspect’s lawyer.  The master copy is held by the police and later, a signed copy is given to the prosecutor.

  

Now this won’t necessarily mean that the witness correctly identified the perpetrator.  However, it will make it easier for the witness to testify as to what the supposed perpetrator looked like when he or she looked at his or her face in the lineup. This way, it won’t be necessary for the witness to point the finger in the courtroom much later as to whom he or she believes is the perpetrator. Each juror and the judge will also have a copy of the signed picture. The witness will simply be shown the picture and asked if he or she signed that picture. Once that phase of the questioning is over, there is no need for either the defendant’s lawyer or the prosecutor to ask any questions relating to the identification of whom the witness believed was the perpetrator of the crime.

I realize that the bodies of the people in the lineup are pertinent but that only applies if the suspect is apprehended at least a year after the crime was committed. A person’s body shape can change in a year. For example the suspect may have been thin when the crime was committed and somewhat obese a year later when standing in the lineup.

The solution to this problem is to have the witness choose the body shape by looking at an array of silhouettes of body shapes and picking the one that most applies to who he or she believes was the perpetrator.

The problem of having a witness look at the suspect’s body in a lineup may not be of any assistance to the witness if the perp was wearing old dirty clothes when he or she committed the crime and is wearing a suit or a beautiful dress when he or she was arrested. The difference in clothing would be distracting.

There is one problem that I see in the facial lineup that could throw a wrench in the lineup procedure. The perpetrator may have had a beard when he committed the crime and when he stood in the lineup, he was clean shaven. This change would make it difficult for the witness to identify the perpetrator that committed the crime. This problem would also exist if the perp was clean shaven when he committed the crime and bearded when standing in the lineup.

The solution can be solved in the following manner.

 First, if the witness says the perp was bearded, and is now clean shaven in the lineup, each of the photos of the other men used in the lineup along with the suspect will have beards (as described by the witness) drawn on each of their faces. If he was clean shaven when he committed the crime and is bearded when standing in the lineup, the faces of all the men in the lineup will be changed by the artist to be bearded. Of course, the artist will have to testify at the trial.

I believe that the procedures I have proposed will make it easier for victims and witness alike to identify the perpetrators.

As I mentioned earlier, the victims and/or witnesses may pick out the face of an innocent person. As you can see from this article, that is fairly easy to do.

That is why it is important that innocent defendants take the stand and testify as to where he or she was at the time of the crime was being committed.  Unfortunately, McDonald chose not to take the stand.  Had she taken the stand, her lawyer would ask her where she was when the home invasion was taking place. Instead, she chose to remain silent which invariable left the jury wondering if in fact she really was at the scene of the home invasion. Perhaps this omission on her part is why the Crown (prosecution) suspects that she was one of the perpetrators in the home invasion and is considering an appeal.