Judge urges changes in suspects’ identification procedures

Justice Alexander Henderson recommended that police consult a checklist when obtaining descriptions of persons seen committing a crime and then take a photograph of any identification parade held. He also urged a tightening up of procedures for holding an ID parade – a line-up at which witnesses are asked if they can identify a suspect. 

The judge made his recommendations on Wednesday in finding Norval Barrett not guilty of robbery and possession of an imitation firearm with intent to commit robbery. Barrett was charged with the robbery of Tortuga Duty Free Liquor Store on Boilers Road in George Town on 17 August, 2010. He chose to be tried by judge alone. 

In handing down his verdict, Justice Henderson said there was no dispute that someone did enter the store, brandish an imitation firearm and steal two cell phones plus CI$452.22 and US$1,798.14. The sole issue for trial was the identity of the robber. 

One clerk in the store said he was not masked, wore a baseball cap and sunglasses.  

The second clerk gave a police a statement in which she described him as medium height, not fat nor skinny, with no scars or tattoos. He was not wearing gloves. She said he spoke softly with a Jamaican accent. She was never able to look directly at his face, only from the side for a brief moment. This clerk gave her statement in Spanish, but Justice Henderson said he was satisfied the translation was accurate. 

Both clerks said the robber told them several times not to look at his face. When he left, he told them not to look or call anyone or he would come back and kill them. 

Barrett was arrested four days after the robbery and police held an identification parade 14 days after that. Barrett could choose wherever he wanted to stand in the lineup of nine men and he chose the No. 1 position. 

When the lineup was held, the first clerk viewed the men first and chose No. 1. Asked if she were sure, she said it was No. 1 or No. 9. 

But the protocol for conducting such identity parades was breached, the judge said. First, the officer who told her about the parade said police believed they had caught the man who did the robbery. A witness is not supposed to know whether a suspect is in the parade or not, the judge cautioned. 

Second, this clerk spent time in the police station lobby in the company of two men who were participating in the parade. A witness is not supposed to see participants beforehand, the judge indicated. 

After the first clerk had viewed the lineup, Barrett was given the option of changing it around. Defence attorney Lloyd Samson said everyone should remain in the same position, but Barrett should change to a different colour shirt and this was done. 

The second clerk then viewed the parade, pointed out No. 1 and said she was positive. 

The inspector conducting the parade then asked Barrett and Mr. Samson if they thought the line-up was fair. Barrett said no, but was not asked why he said no. 

The judge said his assessment of the weight of the identities depended on his assessment of whether the parade was fair. It would have been simple for the police to take a photograph of the men and enter it into evidence. That way, the judge could have scrutinised it to see if the nine men were of similar appearance. 

“I am requesting now that the protocol be amended to require the taking of a photograph,” Justice Henderson said. 

He also asked that greater effort be made to hold ID parades as soon as possible, since witness memories inevitably deteriorate over time. 

He said procedures for conducting ID parades must be strictly followed. In this case, protocol had not been followed with the first clerk. 

Regarding the second clerk, the description she gave of height and build did match Barrett, but it also matched a large number of young men on Grand Cayman. 

The judge recommended that when police officers question a witness about a suspect, they consult a check list of features so as to avoid any accidental omissions. 

The second clerk never saw the robber except in profile for brief moments and there was no evidence she saw the line-up from any perspective except straight on. She was never asked what feature triggered her memory. The men were never asked to speak.  

This clerk’s evidence in court was that she saw the robber well, which contradicted her statement to police; she never explained her reason for choosing No. 1. 

Justice Henderson said the dangers of misidentification became acute when there is just one identification.  

“A witness who is convinced in her own mind may be a convincing witness,” he said. 

He said he had to consider factors such as how long she saw the robber, as well as the distance and lighting, and whether there was any special reason to remember him. 

Justice Henderson concluded the Crown had not made him sure of the identification of Barrett as the robber.