The power of early acquaintance lies in its ability to reduce the chance of an honest mistake in identification. The case law recognized that prior acquaintance is also good for identification on the basis of the defendant's voice, the manner of his gait or the movements of his hands and body, as long as these are characteristics that are familiar to the eyewitness from his acquaintance with the defendant (Haziza, at paragraph 61). Prior acquaintance also allows us to overcome the amount of time in which the eyewitness was exposed to the accused. At the same time, it is clear that the possibility of relying on the reliability of an eyewitness who has prior acquaintance with the defendant is directly proportional to the degree of familiarity between the two. It is not like, for example, superficial acquaintance to many years of acquaintance (Waki, at page 1171)."
- Therefore, it is first necessary to examine the subjective component of the identification testimony, which concerns the credibility of the identifying witness, and to formulate a conclusion as to whether it is an honest testimony or a false testimony intended to incriminate the accused. At this stage, the sincere belief of the moral of identification in the version he gave is examined. In order to examine the credibility of the identifying witness, it is necessary to examine the totality of the circumstances surrounding the testimony.
- In the case before us, I listened very attentively to what the complainant said to the police, and I got the impression that the complainant was very afraid to give details about the shooting incident lest it harm him and his family. However, after the police spoke about the complainant's heart and urged him to cooperate with them, in view of the importance of apprehending the person who committed the act, I got the impression that the complainant gave a clear, consistent and orderly testimony, without any contradictions in it. It is evident that the complainant showed confidence in the degree of identification and believed what he said about the defendant as the perpetrator of the shooting. As a matter of fact, the complainant published a wide range of data and details about the defendant, who Found Correct and verified with evidence. The complainant knew how to say the defendant's full name and nickname "Yayo"; His age, his external description, his origins, details about the tragedy that befell his family following the death of his brother in tragic circumstances, details about a failed business relationship between them that was a possible motive for his desire to harm him. The complainant even identified the defendant in the photo that was shown to him, after he provided identifying details about him, including his full name. The fact that Policemen Siyanov and Yahya took many minutes to persuade the complainant to tell them about the identity of the person who had hurt him so badly, and put his life in danger, as well as the lives of his wife and son, and later the complainant voluntarily retracted his desire to cooperate with the police - by cancelling the additional interrogation that had been scheduled for him at his wife's request, and by his hostility in court and his refusal to re-verify his statements at the hospital - shows more than anything else that the complainant did not seek to deal with a false accusation against the defendant. In addition, the complainant stated that he had known the defendant for several years, but that they had not been in contact for about a year or a year and a half before the shooting incident. Hence, there was no immediate motive on the part of the complainant to slander the defendant. In his testimony in court, the complainant did not claim that he had lied about the defendant's identity, but sought to evade his statement on the pretext that: "You caught me for a second exactly after I woke up from my coma, so it's a shame that I don't think it is valid" (p. 340 of the protégé), and in general the complainant claimed that he had a "short memory." Therefore, I am of the opinion that the complainant's conduct in its entirety shows that in his words to the police, he conveyed the truth. Otherwise, it is reasonable to assume that to the extent that the complainant lied about the identification of the defendant as the perpetrator of the shooting, he would have continued to adhere to his version in court as well. I am therefore convinced that the complainant wholeheartedly believed his version of the police. Therefore, I am satisfied to determine that the identification of the defendant by the complainant, in his statement to the police officers at the hospital, passes the first test in the examination of identification testimony - the subjective internal test.
- I will now address the second stage, which relates to the objective level of identification and concerns the reliability of the identification and the correctness of the testimony, as opposed to the possibility of erroneous testimony. In other words, even when the court is convinced of the absolute reliability of the witness, it is still necessary to examine the reliability of the identification itself, since even if it is a reliable witness, who is sure of his identification, it is still possible that he made an honest mistake. Therefore, the reliability of the identification is also required, in addition to the credibility of the identifying witness, to the extent that it leaves no doubt.
At this stage, it was examined whether despite the credibility of the identifying witness, there was a mistake on his part in his identification. To this end, two sub-tests were determined: one is on the subjective level, and examines the witness's personal abilities to imprint visual impressions in his memory and to identify people by virtue of their appearance (for example, the existence of physical limitations from which the identifying witness suffers, which may prevent him from reliably identifying identification). The second is on the objective level, and examines the conditions and circumstances that surrounded the character's imprint in memory and the possibility that the identifying witness made an innocent and unintentional mistake in identification. In this context, the following considerations should be taken into account, inter alia: the existence of prior acquaintance between the identifying witness and the defendant as reducing the chance of mistaken identification; the length of time the witness saw the defendant during the incident; the time that elapsed between the event and the identification; The conditions of identification - the angle of view, whether the incident occurred during the day or at night, the visibility conditions and the state of the lighting, the distance between the identifying witness and the accused; the witness's expectation to meet the perpetrator of the offense, which is liable to cloud his judgment and lead him to misidentification; The witness's desire to assist the enforcement authorities, which may lead him to identify the person identified based solely on a relative resemblance to the perpetrator of the offense; the context in which the identification was made and which may lead to the identification of a person due to the "setting" in which he appears before the eyes of the identifying witness; various clues that may be given forever, even unknowingly, by the police; The pressure and fear that accompanies the identifying witness due to the expected encounter with the perpetrator of the offense, and more (See: Yaniv and Aki, Law of Evidence - Volume 3, p. 1132 (2021); Criminal Appeal 4524/11 Anonymous v. State of Israel (17.06.2013)).
- In his case, no argument was made regarding any limitation on the part of the complainant or any other party that could have impaired his personal ability to imprint visual impressions in his memory and to identify people by virtue of their appearance. Thus, for example, no claim of visual impairment or any other was heard, and no evidence was presented by the defense that would contradict the complainant's version that he identified the defendant as the one who shot him.
On the objective level, in the "reliability of identification per se" test, I considered the following factors: