Owen McIntosh and Paul McCarthy were charged with numerous offenses arising from the robbery of a dry-cleaning store in which the victim was beaten with a metal rod by one assailant and shot by a second assailant. The two accused men were arrested approximately three months after the incident. Circumstantial evidence was available which linked the accused to the scene of the crime and the getaway car. The Crown's case with respect to the robbery consisted primarily of three eyewitnesses: the victim who was black, the owner of the store who was Chinese, and a white passerby. The two accused were black.
At trial the defendants sought to call this writer as an expert on eyewitness identification. On a voir dire to test whether this expert evidence was admissible the defense proposed evidence related to: the factors present at the time of the robbery that would impair the witnesses' ability to make an accurate identification, the problem of cross-racial identification, the quality of memory recall for perceived events of different time spans, the influence of 'post event information' on memory, the validity of the photographic lineup, the misconception of jurors with respect to photographic lineups, the difficulties with 'in dock' identifications and police procedures relating to the identification of the two accused persons. The trial judge, Madame Justice Wein, refused to admit this evidence.
Mr Justice Finlayson of the Ontario Court of Appeal summed up the tenor of my evidence in my own words:
Well, the understanding of jurors, and how they perceive is what psychologists spend their lives doing. We hope to assist the judge or the jury on the various levels and factors of what would lead to a good or a poor identification. It is not my job to decide whether or not that is the answer. All I can do is assist the trier in understanding. Here are the reasons why it could be a good identification or a poor one. (p. 391) (On reflection, and after approximately five years, this writer would give a similar response in court.)
Mr Justice Finlayson continued:
I am astonished at the passivity of the Crown at trial and on appeal with respect to this type of evidence. At trial, Crown counsel contented himself with the early observation that the witness had said nothing that would convince him that a psychologist would know what information would be 'probative' to the trial. However, he did not cross-examine Dr. Yarmey on his qualifications, or at all, and seemed to accept that the substance of his testimony was properly the subject-matter of expert evidence. On appeal, Crown counsel limited his argument to the submission that we should defer to the trial judge who rejected the evidence in the exercise of her discretion. He was careful, however, to state that there could be cases in which this evidence could be admitted. This posture is not surprising given the reliance by the Crown on the 'soft sciences' in other cases ...I do not intend to leave the subject without raising some warning flags. In my respectful opinion, the courts are overly eager to abdicate their fact-finding responsibilities to 'experts' in the field of the behavioural sciences. We are too quick to say that a particular witness possesses special knowledge and experience going beyond that of the trier of fact without engaging in an analysis of the subject-matter of that expertise. I do not want to be taken as denigrating the integrity of Dr. Yarmey's research or of his expertise in the field of psychology, clearly one of the learned sciences, but simply because a person has lectured and written extensively on a subject that is of interest to him or her does not constitute him or her an expert for the purposes of testifying in a court of law on the subject of that speciality. It seems to me that before we even get to the point of examining the witness's expertise, we must ask ourselves if the subject-matter of his testimony admits of expert testimony. Where is the evidence in this case that there is a recognized body of scientific knowledge that defines rules of human behaviour affecting memory patterns such that any expert in that field can evaluate the reliability of the identification made by a particular witness in a given case?
Paraphrasing freely from the definition of 'science' in The Shorter Oxford English Dictionary on Historical Principles, it seems to me that before a witness can be permitted to testify as an expert, the court must be satisfied that the subject-matter of his or her expertise is a branch of study in psychology concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws. The branch should include trustworthy methods for the discovery of new truths within its own domain. I should add that it would be helpful if there was evidence that the existence of such a branch was generally accepted within the science of psychology.
...I have some serious reservations as to whether the 'Psychology of Witness Testimony' is an appropriate area for opinion evidence at all. I acknowledge that the subject is interesting and Dr. Yarmey's presentation is informative. I also applaud his evidence that he lectures on the subject to police officers. We should all be reminded of the frailties of identification evidence. However, I would have to be persuaded that the subject is a recognized branch of psychology. Even if it is, I do not think that it meets the test for relevance and necessity.
... This opinion evidence is noteworthy in that, unlike most expert psychological or psychiatric testimony, it is not directed to making the testimony of a particular witness more understandable to the trier of fact and therefore more believable (e.g. an explanation of repressed memory syndrome or battered spouse syndrome). This opinion evidence is directed to instructing the jury that all witnesses have problems in perception and recall with respect to what occurred during any given circumstance that is brief and stressful. Accordingly, Dr. Yarmey is not testifying to matters that are outside the normal experience of the trier of fact; he is reminding the jury of the normal experience ... Writings, such as those of Dr. Yarmey, are helpful in stimulating an ongoing evaluation of the problem of witness identification, but they should be used to update the judge's charge, not to instruct the jury.
... Dr. Yarmey was prepared to testify as to the problems of 'cross-racial identification': the perception that members of one race tend to think that members of another race 'all look alike'. Dr. Yarmey's research supports this popular perception and his opinion on the subject is hardly surprising. But before this opinion evidence could be outside the normal experience of the jurors, would he not have had to conclude that the perception was false and that a cross-racial identification problem did not exist? (R v. McIntosh and McCarthy, 1997, pp. 391-395)
In addition, the Court was concerned that expert evidence would be misused and distort the fact-finding process, and that jurors may be overwhelmed by the 'mystic infallibility' of the expert evidence. In sum, the Court held that the 'science' of the psychology of witness testimony had not advanced sufficiently far from the common experience of jurors to warrant its admission.
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