How Reliable Do You Think Your Memory Really Is? The Hazards of Eyewitness Identification

I used to think I had a pretty good memory. Not for the "remember to get the milk and put out the garbage" kind of thing - though I have been working on improving that - but for the key details of major life events, like what someone looked like. Now I'm not so sure. 


Eyewitness identification is a key component of most prosecutions. That dramatic television moment, where the witness slowly but firmly raises his arm, points at the accused, and cries out "That's him, Your Honour!" The fact that the "him" might be wearing an orange jump suit and shackles still doesn't completely negate the value of that in-court identification. But increasingly judges are discounting that in-court proof of what is always an essential element of the prosecution's case: identity. 


A New Jersey case recently relied on an exhaustive study into the perils of in-court eyewitness identification. Faulty eyewitness identification was cited in the vast majority of U.S. wrongful conviction cases. The courts now have been given a host of factors to consider in weighing whether there are sufficient surrounding factors of reliability to permit admission of the evidence. 


But the question remains, should a witness be barred from identifying the accused in court if there aren't sufficient circumstantial guarantees of reliability, or should the testimony of the witness simply be given less weight?

Have a Favourite Court House?

The thing about being a litigator, especially one who practices mostly criminal law, is that I spend a lot of time hanging out at law courts. I know not everyone likes to see the inside of a courthouse, but what about the outside? I think courthouses have some of the best architecture in Canada. From the historic Georgian to the Post-Modern, we seem to measure ourselves by how interesting and impressive our courthouses are. But while their interior functions are really quite utilitarian and uniform anywhere you go, the buildings vary greatly.

From the Arthur Erickson designed Vancouver Law Courts where I was called to the British Columbia Bar (but all that glass had started to develop more than a few leaks in the frequent Pacific coast rains)...

Photo credit to the Canadian Encyclopedia. 

...to the Old City Hall Courthouse of Toronto, reputed to be the fourth busiest in North America and where I started my prosecutor days doing "Liquor Court" in a very old room under one of the gables (though I never saw any of the well-known ghosts)...

Photo Credit to Paulo Barcellos Jr.

...our courthouses seem to define our identities. 

I've practiced in stately enduring structures like the oldest still operating courthouse in Canada of Annapolis Royal, Nova Scotia dating from 1836...

Photo credit to Nova Scotia Dept. of Tourism, Culture & Heritage.

...but also in temporary spots like strip malls and the upstairs of Lion's Club halls. They all had their charm, though the newer ones have a propensity of getting torn down after their few decades of usefulness leads to a losing battle against structural decay and overcrowding. 

So, do you have a favourite, wherever you might be from? Let me know. 

Hate Speech, Unmoderated Comments, National Media and Free Expression

 "He's a liar, a cheat, and a scoundrel !" (Potentially defamatory, unless proven to be true)

"They're scum, and they all deserve to die!" (Potentially hate propaganda, truth tests irrelevant)

As a constitutional lawyer, I'm all for free speech. Lots of national constitutions guarantee it, like s-s. 2(b) of the Canadian Charter of Rights and Freedoms which protects "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." And as Canada's past Director of E-Business Development, I recognize the economic value that free speech can build in online communities.

But the legal reality is that there are limits to online speech. In Canada s. 1 of the Charter says that its guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Laws against defamation and hate, here and elsewhere, check precisely what can be said about whom.

Courts and public discourse are increasingly having to grapple with liability for freedom of expression in the age of the Internet Economy. When I was at the 5th Internet Governance Forum last year in Lithuania, I got to chatting with the ever dynamic and smart Brazilians who were becoming increasingly fearful that major Internet Service Providers (from Google on down) would pull up stakes if the endless barrage of defamation-related civil and criminal litigation brought against them for commentary posted by users of their products (like bloggers) did not diminish.

And Brazil is just the current leader on the beach of shifting Internet defamation sands. Even in places like the United States where courts haven't been overly sympathetic to Internet defamation lawsuits, there are risks to guard against. Courts can't even agree on when whether Internet defamation should lead to higher than normal damages because of its wide distribution, or lower than normal damages because no one takes everything they read on the net seriously (check out this most readable Alberta Law Review article).

However, the thing that's been really bothering me lately is that court cases and public discourse seem to have focused on laws of defamation which protect reputation, rather than on laws prohibiting hate propaganda which protects peoples' lives. Grey vagueries and consequences of Internet defamation should NEVER be confused with hurtful and sometimes deadly certainties of Internet hate propaganda.

The Canadian Criminal Code has this to say on spreading hatred:

Public incitement of hatred
s. 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Defences
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

These laws apply to public Internet communications. Other countries have similar laws.

There are lots of dark Internet corners with private forums where hate will fester for those who look hard enough, and few resources available to track all of them down. But where we have public highways of the Internet bathed in the spotlight of national media offering users the opportunity to post comments, there may be a greater obligation to take reasonable steps to stop the spread of hate through widely read commentary appended to articles and videos.

I'm not talking about all you diligent bloggers off in blogoland being read by dozens, hundreds or (gasp) thousands of readers per day (I think I have a ways to go yet to even get into the dozens realm). I rarely see offensive blog comments, and when I do blog owners usually take care of them pretty quickly.

And I'm not wading into ongoing debates over the liability of third-party Internet Service Providers who merely provide the technological means for millions of content creators to do their thing (not unlike a telephone company providing the means for millions of verbal conservations, good and bad).

What I'm asking you to think about is the responsibility of organizations creating some content for millions of users a day to control the comments being appended to that content. News sites seem to break down into four categories of comments policies:

1. those that prohibit all comments - no problem there on the hate front;

2. those that moderate their comments firmly and in advance - rare for there to be a problem in the face of firm screening policies and diligent moderators;

3. those that require users to register a supposedly true identify to guard against anonymous hit and run attacks - while several media organizations have been considering ending anonymity due to this argument, some maintain that only firm moderation will do; and

4. those that take down offensive posts only after complaints - an after the fact moderation.

Canadian media are taking different approaches to the online hate commentary problem. Some have been subject to criticism due to comments posted on their sites. What I think all media need to consider here is what is really being accomplished by permitting online comments to link and immediately follow their creative content, and if they think that significant value is being created by comments on articles and videos, are they willing to put significant resources behind keeping those comments to an appropriate level.

Careful moderation (and sometimes editing) was always the rule for publishing letters to newspaper editors, so why not for online comments? If comments are appearing on a branded website, and being associated with carefully crafted creative content, why not impose reasonable controls in advance of the comments appearing?

Too many comments? Too difficult? Too expensive? Then why permit the comments in the first place?

As a white English speaking male from a "developed" country, I'm not the one against whom problem comments are aimed. But I feel I'm the one who needs to speak out about the problem. As a defender of free speech and freedom of the Internet, I'm also a defender of those who get attacked by that speech and through Internet means. I'm intolerant of intolerance.

Many Internet hate victims don't yet benefit from easy Internet access themselves. Others can't be expected to spend all their time tracking down and responding to the hate. And really, what is an appropriate response to hate anyway? At the very least, it needs to be pushed to the margins of the web. It's not a question of censorship, it's a question of human rights.