A warning about eyewitness evidence can affect the defence as well as the prosecution. The Supreme Court of Canada is considering what happens when the evidence a judge cautions jurors about may actually help the accused.
The Court heard Bowcock v. The King on November 4 and reserved judgment. The appeal concerns a shooting prosecution in which the identity of the shooter was central. Parts of a witness’s description did not match the accused, whom a jury convicted. The British Columbia Court of Appeal dismissed his appeal.
When can a caution prejudice the defence?
The Supreme Court’s summary identifies two questions: whether the caution about potentially exculpatory eyewitness evidence was justified, and whether other parts of the jury charge adequately addressed any prejudice. The second question matters because an instruction can take on a different meaning when read in the context of the charge as a whole.
A separate appeal approaches the problem from the other direction
In Sarroino v. The King, a Quebec jury acquitted the accused. The Quebec Court of Appeal ordered a new trial after finding a material error in the instructions linking a witness’s description to reasonable doubt. The Supreme Court record reviewed for this article listed the appeal for November 5; it did not establish a disposition.
The cases raise related questions from different procedural positions. In Bowcock, the accused challenges instructions after a conviction. In Sarroino, the accused challenges an order for a new trial after an acquittal. That difference matters when considering how an appellate court may address an error in a jury charge.
For trial counsel, the practical question is whether the charge explains how a description that does not match the accused may bear on reasonable doubt, without telling jurors what weight to assign it. The Supreme Court has yet to provide its answer in Bowcock.
Sources: Supreme Court of Canada - Bowcock docket and summary, file 42055; Supreme Court of Canada - Sarroino docket and summary, file 41927; Supreme Court of Canada hearing schedule.