NJ Supreme Court Releases
Eyewitness Identification Criteria for Criminal Cases
The New Jersey Supreme Court recently
released expanded jury instructions, a new court rule, and a revised court rule relating to
eyewitness identifications in criminal cases in response to its decision in
2011 on the topic. That unanimous decision, State v. Larry R. Henderson, revised
the legal framework for evaluating and admitting eyewitness identification
evidence and directed that revised jury charges be prepared to help jurors
evaluate such evidence. Henderson drew on an extensive
review of reliable scientific evidence on human memory and the various factors
that can affect the reliability of eyewitness identifications.
In discussing the new rules, Chief
Justice Rabner wrote, “In all future criminal trials involving
identification evidence in New Jersey, judges will rely on new model jury
instructions that can be tailored to the facts of each case. Jurors will
then hear about relevant factors that may have affected the reliability of the
identification evidence presented at trial. The instructions are designed
to minimize the risk of wrongful convictions and help jurors reach informed,
just decisions.”
In Henderson, the Supreme Court
revised the existing legal standard for assessing eyewitness identification
evidence because the old standard had not offered an adequate measure for
reliability, had not sufficiently deterred inappropriate police conduct, and had
overestimated the jury’s ability to evaluate identification evidence. The
opinion required that the current instructions to jurors on
eyewitness identifications be expanded to address variables related to how law
enforcement officers conduct identification events as well as important factors
outside the control of law enforcement. To develop the necessary modern
standards, the Supreme Court asked the Criminal Practice Committee and the Committee on Model
Jury Charges, composed of judges, prosecutors, defense
counsel, and other legal practitioners, to draft proposed revisions
to the jury charge and submit them for the Court’s review.
Before the New Jersey Supreme Court issued its
opinion in Henderson, the New Jersey standard for determining the
admissibility of eyewitness identification evidence had been derived from principles
the U. S. Supreme Court set forth in Manson v. Brathwaite in
1977. Virtually all of the scientific research considered in the Henderson appeal
emerged after Manson.
When published nearly a year ago, the Henderson decision attracted national
attention for its review of current scientific evidence that addressed human
memory and how an array of variables can affect and dilute memory and lead to
misidentifications.
The new jury instructions caution that certain
factors about an eyewitness’s circumstances at time of the offense could render
the testimony less reliable. Those factors include the stress the eyewitness
was under, the duration of the event, lighting, distance, the eyewitness’s
focus on a weapon, and cross-racial identification. Other factors that
jurors will consider include the procedures used by law enforcement during the
actual identification process. The instructions require jurors to consider the
composition of a lineup or photo array and whether any spoken word or gesture
by the police could have suggested a specific defendant.
Under the new rules and jury instructions, jurors
must weigh factors about the eyewitness’s circumstances at the time of the offense,
along with law enforcement’s behavior when conducting identification
procedures, to determine the reliability of eyewitness testimony.
The new jury instructions emphasize that any
single factor or combination of factors does not mean the eyewitness is
incorrect. “The ultimate issue of the trustworthiness of any eyewitness
identification is for the jury to decide,” wrote Chief Justice Rabner. “Only
with a fully informed and properly instructed jury can justice be
served."
This new line of jurisprudence stands in
contrast to the Supreme Court analysis of the same problem. In a recent United
States Supreme Court decision, Perry v. New Hampshire, 565 U.S. ___,
132 S.Ct. 176 (2012)), the court refused to establish a new rule
requiring courts to evaluate eyewitness identifications made in suggestive
settings before submitting the identifications to a jury.
Ten federal circuits and 42 states allow
expert witness testimony on the fallibility of eyewitness identification
evidence. In a recent case, U.S. v.
Owens, 682 F.3d 1358 (11th Cir. June 8, 2012) (per curiam), the court
affirmed a conviction where the district court had refused to allow evidence of
the flaws of eyewitness identification. In a remarkable and well-written
dissent that accurately expresses the opinion of the supermajority of the
national jurisprudence (but not the Eleventh Circuit), Judge Rosemary Barkett listed
the complexities of this type of evidence. She wrote regarding the
inconsistencies of the witness's descriptions of the perpetrator:
"The literature suggests that such a
change could be caused by the witness viewing a suspect's image in a photo
array. However, this phenomenon cannot be explained by cross examining a lay
witness, nor is it a matter of common intuition that viewing the suspect's
image in more than one photo array can distort an eyewitness's actual memory of
events. . . . Having been given the opportunity to change our court's
position that appellate courts are never permitted to review for abuse of discretion
the exclusion of expert testimony regarding the reliability of eyewitness
identifications, we should avail ourselves of it. That isolated position,
established thirty years ago [United States v. Thevis, 665 F.2d 616 (5th
Cir. 1982)], conflicts with all of the other circuits and all but five of the
states that have considered the question. I cannot think of any reason, legal
or logical, why such a ruling should not be subject to the same abuse of
discretion standard as any other evidentiary ruling in a trial, especially in
light of what we know today, thirty years later, about eyewitness
identification. Our continued adherence to a rule that disfavors this form of
testimony is indefensible in light of the science supporting its usefulness.
Our doing so is particularly unjustifiable given that we do review the
exclusion of polygraph evidence, which is widely condemned as unreliable by
courts and experts! . . .The prior rule was decided on the premise that 'the
problems of perception and memory can be adequately addressed in
cross-examination and ... the jury can adequately weigh these problems through
common-sense evaluation.' In the thirty years subsequent to the
creation of our rule, however, over two-thousand studies on
eyewitness memory have been published making clear that the premise
of Thevis does not justify a categorical rule of non-review."
"The ten other circuits and forty-two
state courts that disagree with our approach have recognized that expert
testimony can be helpful to the jury precisely because 'the conclusions of the
psychological studies are largely counter-intuitive, and serve to "explode
common myths about an individual's capacity for perception. This
overwhelming body of scientific research, which has 'established beyond any
doubt that eyewitness testimony has the potential to be dangerously
unreliable,' and that 'eyewitness misidentification remains the leading cause
of false convictions in the United States,' was unavailable when the rule was
decided. The unreliability of eyewitness testimony is now widely recognized in
the psychological literature and by law enforcement. Studies conducted in both
experimental and real-world settings have revealed eyewitness misidentification
rates varying between one-quarter and one-half of all identifications,
depending on the factors being tested. At the same time, jurors remain
uninformed of these causes of eyewitness errors and therefore are unable to
evaluate their impact on the reliability of eyewitness testimony."
The law is often slow to accept the changing
scientific, technological, medical, and even theological world around it. When
society moves ahead of the law, it can lose respect for the law. This occurred,
for example, when slavery was legal; when suffrage was denied based upon color
or sex, and when crimes were defined without regard to the use of computers. On
the other hand, the fact that the law does not easily move with the emotional
tides of the day is also one of its strengths. Many of its basic precepts and
definitions (for example, with regard to, murder, theft, contract, and real
property law) have survived over thousands of years. Finally, the law is sometimes
ahead of society, leading a reluctant public in the direction of a better and
more just nation. New Jersey’s new rules fall into the final category; they
presage an era of more efficient, and more accurate, criminal justice. (smb)
