The victim, who was identified by GH in order to protect her privacy, worked as a sex worker at the time.
The prosecution alleged Bayley had picked GH up in his car and punched her on the side of her cheek before sexually assaulting her. Bayley claimed that the victim made a mistake when she identified him as her attacker.
She first identified Bayley 12 years after the attack, during the media frenzy surrounding Meagher’s death. She was browsing Facebook when she saw Meagher’s missing persons page. , according to her evidence said:
[…] I saw Adrian Bayley and knew instantly that he was my guy.
The police then performed a formal procedure using a photo board. They showed her an image board that had around 12 photos on it. One of them was Bayley. She was able to identify him positively during this procedure.
At the trial, the jury accepted GH’s evidence and convicted Bayley. He appealed the case to the Court of Appeal, arguing that a reasonable jury would not have been able to find him guilty beyond a reasonable doubt.
He argued that the circumstances in which the victim identified him on Facebook were unreliable and that the police’s later identification was inconsistent, too.
The displacement effect
The court of appeal agreed and said that there was a too high risk her ID would be tainted due to a phenomenon called the displacement effect.
This is one way that post-event data can alter how we remember an incident, with our brains tricking us subconsciously.
The American cognitive scientist Elizabeth Loftus, famed for her research into false memories, has shown that when we hear someone else describe another person in a certain way, it can lead us to tell them the same way, even if this description isn’t true.
The displacement effect is more specific: seeing someone after an event, whether in a photograph, video, or real life, then linking them with that event, for whatever reason, and falsely recalling them as being involved.
Imagine that, one night, you witness a fight outside of your local pub. The police are interested in interviewing you because you don’t recognize anyone involved. You agree to go to the police station within a few days.
Before you head to the police station, your friend opens their Facebook app and shows you pictures of the people they think were involved in the fight.
You may superimpose the photo of your opponent’s face on the image you first see. This is not a guaranteed thing, but it is definitely possible.
Now, you can confidently recall the person in the picture as the person who was involved in the fight. You might even be right. You might not even realize that your mind has altered your memory because you expected to see the suspect.
Our memory is not a perfect recording. The displacement effect is the brain’s Photoshopping of memory. It involves a new image being superimposed on an old one.
Facebook and the Displacement Effect
Before Facebook became a part of everyday life, the displacement problem wasn’t as bad. We did not have access to large databases of photos of people that we may or may not know.
Social media has changed all that. Now, we have access to photos taken by friends, friends of friends, and strangers. We have more chances to do our amateur investigations and find the suspect.
Eyewitness identifications are now even less reliable than before, accounting for over two-thirds (or more) of all wrongful convictions just in the United States.
The circumstances under which someone has identified a defendant are important to the courts. Suppose an initial identification was made under suspicious circumstances, for example, a witness searching Facebook to identify the offender. In that case, the identification may not meet the standards needed to be accepted as evidence.
Facebook can be used to track down a criminal, but it’s a double-edged weapon. Facebook offers a new way to find out who did the crime. However, the evidence may become unusable.
When we are actively trying to locate the person, the displacement effect can be a dangerous one. This is dangerous because we expect to succeed at least partially.
A word of caution. Special procedures are in place by the police to minimize the chance of errors during identification. Do not look on Facebook or any other social media before you have had the opportunity to speak with police if you witness a crime. You could end up doing more damage than good.
