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Marilyn Sandford

Marilyn Sandford on Twenty-Seven Lost Years

“Rather than cautioning the jury, then, concerning the potential tainting effect of the line-up and Mr. Henry’s legal right to refuse to participate, the trial judge belittled Henry for introducing in evidence the circumstances of the line-up, erroneously stating that, had the Crown attempted to lead the circumstances that evidence would probably have been ruled inadmissible. To make matters worse, the trial judge wrongly suggested that the refusal to participate in the line-up could be used to infer consciousness of guilt; failed to point out the deficiencies in the line-up procedure; and failed to caution the jury regarding the reliability concerns of identifications that were made subsequent to witnesses having viewed the flawed line-up.

“Upon reading the trial transcript, I discovered that the line-up was just the beginning of the many disturbing circumstances in this case. While there were additional errors in the charge and in evidentiary rulings, what struck me most was the fact that there was no evidence to speak of implicating Henry. The complainants identified him in the dock based on, for example, his voice, after having heard his voice at the tainted line-up and at the preliminary inquiry, and without being able to point to any distinctive vocal characteristics. That was essentially the case against Henry. It amounted to no case at all.”

Excerpt from Tough Crimes: True Cases by Top Canadian Criminal Lawyers
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