Section 114(2) of the Evidence Act 2008 (Vic) applies to intentional influence exerted by any third party, not only police. Where a witness is told the identity of a suspect before viewing their photograph on social media, the prosecution bears the onus of establishing on the balance of probabilities that the identification was made without the witness having been intentionally influenced. The influence need not be the sole or predominant factor but must have had a material effect on the identification. Facebook identification evidence that follows a third party's nomination of the suspect is likely inadmissible under s 114(2).
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