R. v. Huerta, 2020 ONCA 59
IDENTIFICATION EVIDENCE - WRONGFUL CONVICTION - JURY INSTRUCTIONS
Background
Mr. Humberto Dapena Huerta faced an eight count indictment arising from six incidents, involving six complainants. The central issue at trial was the identity of the perpetrator. Mr. Huerta was convicted by a jury of one count of criminal harassment of NF, one count of sexual assault of JC, and one court of sexual interference and one court of sexual assault of JA. He was acquitted on four other counts related to three other complainants.
The Identification Evidence
Mr. Huerta is a caucasian male in his 40s, of medium build, and is approx. 5’9” tall. He has dark hair with white at the edges. He does not have pockmarks on his check. Mr. Huerta does not have facial hair.
The three complainants -NF, JC and JA- resulting in convictions provided identification evidence at trial. None of them could identify Mr. Huerta from a photo line-up. They all provided a generic description of a man who was caucasian, medium build, height of approximately 5’10”/11” and aged between 40-50 years old. Two of the complainants identified him as having grey hair.
The three complainants -CC, CO and KD- whose complaints resulted in acquittals also provided ID evidence of the perpetrator. They described the man as caucasian, somewhere between 5’7”-5’9” in height, brown hair and estimated his age was younger than the other three complainants. One complainant identified the perpetrator as having a russian accent. Another identified the perpetrator as having a moustache.
Following one of the incidents, the police prepared a composite sketch with one of the complainant’s input (JA). The composite includes visible “pockmarks” on the perpetrator’s cheeks. Three educators who worked nearby the alleged incidents testified that they saw a person by the school who resembled the man depicted in the composite. The educators identified the perpetrator as caucasian, age range from 35-50 years old, they did not observe facial hair or the color of his hair, and height ranging from 5’5”-5’10”.
The evidence of the educators that Mr. Huerta resembled the person in the composite should not have been left to the jury for the purpose of establishing the ID of the perpetrator. The educators were not eyewitness to the offence. Mr. Huerta conceded at trial that he was in the park the day the educators saw him, but claimed he was not the perpetrator in question. The educators’ evidence that the appellant was “suspicious” was highly prejudicial.
Jury Instructions Regarding Eyewitness Evidence
TJ’s must instruct juries on the dangers of eyewitness evidence. A new trial is warranted where TJ fails to draw jury’s attention to the specific frailties of eyewitness evidence (See R v Lewis 2018 ONCA 351). The dangers of eyewitness ID evidence are well established: iit is inherently unreliable, difficult to assess and deceptively reliable (See R v MB, 2017 ONCA 653). A trial judge should instruct the jury that when an eyewitness fails to mention a distinctive feature of the accused, the reliability of the evidence may be in question (See R v Jack, 2013 ONCA 80). When a witness describes distinguishing features, the TJ should instruct the jury as to the potential importance between the accused’s actual appearance and the provided description (See R v Savoury, 2015 ONCA).
“When generic eyewitness description is coupled with the failure of the witness to identify the accused as the perpetrator, further instructed may be warranted”
The ONCA concludes that while the TJ conveyed the general frailties of eyewitness evidence, the TJ erred in failing to identify specific weaknesses in the ID evidence in this case. Mr. Huerta did not have any of the distinguishing features proffered by the complainants: facial hair, Russian accent or pockmarks. Neither NF nor JC could identify Mr. Huerta in the photo line-up.
Conclusion
A conviction is unreasonable where the evidence is too generic and insufficient to establish identity (See R v Ellis, 2008 ONCA 77). Courts have previously substituted acquittals for convictions where appellant did not match the description given at trial. Given that most of the descriptions of the perpetrator’s physical appearance were generic and that multiple distinctive features were inconsistent with Mr. Huerta’s appearance, the ONCA substitutes acquittals on each of the four counts on which the appellant was convicted.