Identification evidence: proof and doubt: an experiential teaching and learning strategy to promote deep analytical understanding combined with incremental development of practical legal skills

Identification of a defendant is a complex and fascinating issue that frequently arises in criminal trials. Important rules apply in relation to the admissibility, and warnings as to the use, of identification evidence in criminal proceedings. In other litigation contexts, issues of identification are less often encountered and the evidentiary rules are not as stringent. Not withstanding that, it is apparent that similar considerations as to questions of weight and the making of rational inferences from facts leading to proof of, or doubt about, identity arise in all such contexts. In contemplating student learning in this difficult area of evidence law, it is important to employ teaching strategies that promote deep learning through analysis and synthesis of facts in the specific legal context, and also to allow students the opportunity to learn by doing. At the same time, such strategies must be designed to provide for and foster the transfer of this learning to similar but different situations, as ‘knowledge of evidence will help [students] in almost any function they may perform as lawyers, since so much depends, in shaping any legal transaction, upon what the parties contemplate would happen if the matter went to court … and a careful lawyer always has an eye on what could be proved.’ A problem scenario relating to the commission of crimes and the evidentiary rules applying to identification of a defendant in criminal proceedings is used for the experiential teaching and learning strategy devised for the identification evidence topic in the author’s Evidence course. This is a compulsory course within the Bachelor of Laws (LLB) program at the University of Newcastle. The analytical and advocacy skills that are developed by students through this experience as they ‘get a feeling for how evidence actually plays out in the courtroom and in other stages of litigation’ will be readily transferable to different legal contexts. This transference has become apparent in the skills exercises completed by some of the same students in the Trial Process course, a subsequent practical skills course focused on advocacy in both criminal and civil litigation contexts undertaken by those students in their final year of study