New Jersey Supreme Court ruling could impact eyewitness IDs across the country

By Correy Stephenson Dolan Media Newswires BOSTON, MA--A recent decision from the New Jersey Supreme Court that found existing state procedures for eyewitness identification invalid could have a major impact in other jurisdictions. In State v. Henderson, a unanimous court concluded that 30 years of scientific research has shown that eyewitness identification is less reliable than once believed. The court went on to change the state's procedural and evidentiary rules concerning such IDs. Suspects will now be offered a greater opportunity to challenge eyewitness IDs prior to trial, and juries will receive new instructions to inform them about the issues surrounding eyewitness identification. "We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications," the court said. "Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control." Criminal defense attorneys and eyewitness identification experts praised the decision. "I am delighted," said Leslie Stolbof Sinemus, president of the Association of Criminal Defense Attorneys of New Jersey and a practitioner in South Orange, N.J. "The entire court system needs to be more careful than we have in the past about placing great weight on eyewitness identifications." The case "really does settle the question of whether this is good science," said Lisa J. Steele, a criminal defense attorney at Steele & Associates in Bolton, Mass. who also practices in Connecticut. "It will lend ammunition to challenges [of eyewitness testimony] in other states." Remedying the problem Prior to the decision, eyewitness IDs were virtually never suppressed in New Jersey, no matter how bad the identification or how suggestive the procedures were, said Gary L. Wells, a psychology professor at Iowa State University and expert on eyewitness identification. But now, there is "the possibility of a court actually suppressing an eyewitness identification," he said. In addition, if eyewitness evidence is introduced at trial, "it may be given less weight because of the jury instructions that go along with it," Wells said. "Therefore, the state is going to have to do a better job of performing a more thorough investigation and finding corroborating evidence to go along with an eyewitness ID." The New Jersey opinion suggests two steps that could help remedy the problems with eyewitness identification. First, the court stated that "when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings." These variables include police procedures, such as whether the witness was told that the suspect may not be in the lineup and that they are not required to select anyone, or whether the lineup procedure was "double blind," meaning that the officer who administered the lineup was unaware who the suspect was and the witness was told that the officer didn't know. Witness-specific factors can also be considered, including whether the witness was under a high level of stress, whether a weapon was used, the lighting conditions and how far the witnes was from the perpetrator. In the past, the only real issue at such hearings was the behavior of the police, Sinemus said. "Now we have all these other indicia to help us understand whether or not this was a reliable ID or whether it was tainted because the witness overheard that someone made a confession," she said. Attorneys noted that the use of experts may increase, with testimony about the conditions of the incident and the stress upon the witness, for example, although Steele noted that states are "all over the map" on whether or not they permit expert testimony on the issue of eyewitness identification. As a second step, the court directed two judicial committees to draft "enhanced jury charges on eyewitness identification for trial judges to use." Wells said the instructions are a step in the right direction. "Juries are not quite as impressed [with an eyewitness identification] if there are a lot of instructions cautioning them about the evidence," he said. Steele expressed concern about the timing of the instructions. "The Henderson court notes that the instruction could be given with the witness' testimony, which could help" defendants, she said. But if the committees suggest form instructions to be given at the end of a trial, that may create problems for defendants, she said, given the time lapse between the witness' testimony and the delivery of the instructions to jurors. Other states, civil cases? Given the detail of the New Jersey opinion, the decision could have an impact outside the state. Steele said she has sent one letter to the Connecticut Supreme Court as an amicus in a case, bringing their attention to the Henderson decision, and plans on referencing it in another upcoming case. Wells noted that Utah is currently considering a similar case. Further, the same principles could apply in civil cases. "This is going to affect every single case where there is a witness who says they saw something or heard something," Steele said. On the same day it issued Henderson, the court decided a companion case, State v. Chen. In that decision, the court limited the retroactivity of Henderson to the case at hand. Sinemus expressed disappointment that the court declined to apply Henderson retroactively to all criminal cases in New Jersey. "We're dealing with people who may be unfairly and inappropriately accused and I don't understand why the decision is not fully retroactive," she said. Entire contents copyrighted © 2011 by Dolan Media Company. All rights reserved. Reproduction in whole or in part without written permission is expressly forbidden. Published: Thu, Nov 3, 2011