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'Photofit' is a term which has become used to denote any technique used by the police to create a visual representation of the perpetrator in a criminal investigation. It may involve drawings, photographs, or computer-aided methods. There are two main problems with the use of photofits: first, they are no more reliable than the memory of the witness; second, they may amount to Hearsay, or be inadmissible on other grounds

Reliability of photofits

If the jury in a criminal trial are shown a photofit picture made shortly after the offence, and it bears a strong resemblance to the defendant, then this similarity will be highly influential. Of course, a possible explanation for the resemblance is that the police have sought out and charged a person whose appearance matched that of the photofit. In short, there is an even greater risk that a jury will be misled by a photofit picture than there is that it will be misled by an identifying statement made by a witness in court. This suggests that the standardturnbull direction should be given if there is any doubt about the reliability of the recollection of the eyewitness.

Admissibility of photofits

Strictly speaking, if a photofit amounts to an out-of-court statement, it ought not to be admitted (but this situation may be changed by the Criminal Justice Act 2003 -- see below). If it is tendered in evidence by a witness making an identification by a witness giving oral testimony, then it is an 'earlier consistent statement', and should be inadmissible on the basis of the rule against narrative. If it is not tendered by a person making the identification in court, then it is Hearsay.

In fact, it appears that photofits are admissible whether or not they are tendered by a person giving identification during oral testimony. As to whether photofits are hearsay, the Court of Appeal in R v cook (1982) drew an analogy with photographs. Photographs are routinely admitted, and it has never seriously been suggested that they amount to hearsay. It is not clear whether the reason for this is that they are not statements at all, or that another exception to the exclusionary rule against hearsay has developed without anybody noticing. In any case, the Court stated, if a photograph does not infringe the rule against hearsay, a photofit should not do so either. As to whether a photofit infringed the rule against narrative, the Court stated that photofits were a class of evidence sui generis, and had to operate under their own rules. That being the case, there was no logical reason not to admit them.

The argument that photofits are not hearsay by analogy with photographs is flawed. The entire purpose of excluding hearsay, when it is excluded, is because the jury cannot judge the reliability of the person making the statement. With a photofit, it is exactly that person whose reliability is most likely to be questionable. And, in fact, according to s.115(2) of the 2003 Act, a photofit or photograph is a statement, and will amount to hearsay if it was made in order cause a person to believe in the truth of some factual situation. Consequently, a photofit offered as identification evidence by a witness, other than the eyewitness to events who directed its creation, will only be admissible under one of the exceptions to the exclusionary rule (e.g., if the eyewitness is dead).

As to the rule against narrative, s.120(5) provides that any evidence of identification (of a person, place, or thing) is admissible to the same extent that oral evidence from the same witness would be.