Important New Ruling on Eyewitness Evidence

The New Jersey Supreme Court issued a very important ruling on how trial courts must handle eyewitness testimony. The Innocence Project reports on the development.

“Today the New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

Here’s what the ruling specifically does:

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification. The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification. These factors include:

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.

• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.

• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect. Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.

• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.

• Whether the witness was under a high level of stress.

• Whether a weapon was used, especially if the crime was of short duration.

• How much time the witness had to observe the event.

• How far the witness was from the perpetrator and what the lighting conditions were.

• Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.

• Whether the perpetrator possessed characteristics that would make it harder to make an identification. Was he or she wearing a disguise? Did the suspect have different facial features at the time of the identification?

• The length of time between the crime and identification.

• Whether the case involved cross-racial identification.

This is very, very positive. Eyewitness testimony has been shown to be one of the least reliable forms of evidence in a criminal trial and it’s made even less reliable by the ways in which the police handle the witnesses and the identifications. You can read the full ruling here.

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  • Interesting. Just last week I got excused from the jury on a drunk-driving case; it was the prosecutor who tossed me off with his first challenge, at least partly because I stated in voir dire that I regarded eyewitness testimony as unreliable and preferred physical evidence. I have no idea if the prosecution had anything other than the testimony of the arresting officers.

    What amazed me was how many people in the jury pool regarded the police as incapable of lying; obviously they don’t read this blog.

  • Pen

    I was once asked to make an identification from photographs after, well, meeting a burglar on the stairs of the building. This happened in France, but I doubt the US is immune to this kind of thing. When I arrived at the police station, the first thing the cops said to me was “he was North African, wasn’t he?”. Actually, this was not just racism, the victim was sure she was the subject of a revenge crime, and had turned in the name of an ex-friend. But it was gross incompetence… and also, as it turned out, wrong. The burglar was fair-haired and blue-eyed. If he hadn’t been so definitively North European looking, could I have been led into identifying the wrong guy?

    Guess this one falls under the ‘feedback’ category.

  • Foster Disbelief

    Until the Supreme Court smacks this ruling down, this is the best news I’ve heard all week.