[Vision2020] What Did They Really See?

[Art Deco]

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August 26, 2011
What Did They Really See?
In a landmark decision this week, the New Jersey Supreme Court set new guidelines for how courts and juries must assess eyewitness identification of criminal suspects. The laudable decision applies only in New Jersey but could have a national impact. It provides a thorough, science-based explanation of how eyewitness evidence can become tainted and offers a judicious template for the United States Supreme Court and other states to follow. 

Eyewitness identification has been a subject of hundreds of studies over the last three decades, showing that memory and perception can be highly unreliable. Of the 273 people freed from prison with DNA evidence by The Innocence Project in cases reshaping this area of law, three out of four were convicted with false identifications. 

In a unanimous opinion, Chief Justice Stuart Rabner noted that misidentification is the leading cause of wrongful convictions across the country. He wrote: "The changes outlined in this decision are significant because eyewitness identifications bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts' ability to conduct fair trials." 

Under the new guidelines, a trial judge must hold a hearing to consider a wide range of factors if the defendant presents evidence that the identification was unfairly suggestive. Some factors relate to the witness, some to the culprit, others to the event - like the amount of time the witness observed what occurred, whether the witness and suspect were of different races, how light or dim the scene was. Other critical factors deal with the identification process, like how the police lineup was set up. 

As before, eyewitness evidence would not be admissible at trial if the court found that, given "the totality of the circumstances," there was "a substantial likelihood of misidentification." However, if the judge decides to admit disputed eyewitness evidence, he or she must now instruct jurors on the factors that might affect its reliability. 

The New Jersey decision puts aside an approach to eyewitness evidence established in 1977 by the United States Supreme Court and still followed by all other states. That approach, Chief Justice Rabner said, overstates "the jury's innate ability to evaluate eyewitness testimony." 

The Supreme Court is scheduled to hear a major case about eyewitness identification in November, the first on this issue since that 1977 decision. The Roberts court should pay close attention to the well-grounded decision reached by the Rabner court in New Jersey. 




_________________________
Wayne A. Fox
wayne.a.fox at gmail.com
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