Identifying Ivan by Willem A. Wagenaar

Author:Willem A. Wagenaar
Language: eng
Format: epub
ISBN: 9789085241522
Publisher: For the Benefit of Mr. Kite
Published: 1987-12-31T16:00:00+00:00

Presence of defense counsel

The presence of defense counsel was already mentioned in the context of Rule 11. There the issue was the failure to report unsuccessful identifications. But there is more at stake than selective reporting or unconscious suggestion. The real issue is that an identification parade is not only an important element of evidence against a suspect, but also an important means of vindicating the defendant. The Devlin Report mentions that in about 50% of the recorded cases witnesses do not identify the suspect. In reality this proportion will be even larger because there will be an excess of failed identifications in the unreported cases. Identification tests cannot be repeated once they have taken place (see Rule 7). Violations of rules will promote the incrimination of the accused, rather than increasing the demonstrability of innocence. Even if an improperly conducted test is later rejected by the court, it could be that a valuable opportunity of vindicating the accused was lost. When there is a scarcity of witnesses, it is therefore in the interest of the defendant that the identification tests are performed according to the rules. The presence of defense counsel is one way to ensure this.

The Devlin Report states only that it is ‘desirable that a suspect should always have a solicitor representing him at a parade.’ In the State of Israel it is required by statute. In the light of the foregoing I think that it is eminently important that the accused is allowed the assistance of defense counsel at parades, and that a refusal of this elementary right should be justified by the investigators in the written report.

Rule 44: Defense counsel should be given the right to attend identification tests.

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