How Will New Jersey’s New Eyewitness Identification Rules Impact Criminal Justice?

On July 19, 2012, the New Jersey Supreme Court issued new rules confirming a growing concern that eyewitness testimony and memory are not inherently reliable.  The New Jersey Supreme Court set essentially two new standards for the manner in which the justice system should handle eyewitness testimony.   Police investigators administering an identification lineup or photo-array are now required to make a record of the entire procedure either through taking notes or electronically. If the investigators fail to do so, the witness’s identification can be thrown out.  Such recording procedures are important to ensure that the witness is not improperly influenced by an investigator’s comments. Equally important, the recording will ensure the manner in which the witness identified the suspect.  .  The manner in which an eyewitness identification is made is an important fact for any defense attorney who is attempting to challenge an eyewitness’s identification.

The New Jersey Supreme Court, perhaps more importantly, also issued new instructions for jurors on eyewitness identifications.  These instructions caution jurors to consider various factors that could make such identifications less reliable.  Some of the warnings are that human memory is not fool proof.  Research has revealed that human memory is not like a video recording, and that a witness need only replay an event to remember what happened. Memory is far more complex. Additionally, research has shown that people may have greater difficulty in accurately identifying members of a different race.

None of the new instructions are controversial for their content. Quantitative studies have shown that the biggest culprit in wrongful conviction cases is faulty eyewitness testimony.  These studies, among others, also show that eyewitnesses are prone to make the greatest mistakes when identifying strangers of a different race.  Opportunities for eyewitnesses to make comparisons between suspects during lineups or photo-arrays just exacerbate these issues.

The Supreme Court of the United States in January of this year had an opportunity to take the issue of eyewitness testimony but declined to make any changes to jury instructions or evidentiary restrictions.  See Perry v. New Hampshire, 132 S. Ct. 716 (2012).  However, there appears to be a greater willingness at the state level to implement changes similar to New Jersey’s eyewitness instructions.  Elizabeth Loftus, a professor of law, psychology and cognitive science at the University of California Irvine, anticipates that several states will adopt similar changes following the New Jersey decision.  Professor Loftus is currently working with a judge in Pennsylvania to adopt a new instruction for that state based off the New Jersey Supreme Court instruction.

The new instruction is bound to make jurors more suspect of eyewitness identifications, particularly ones in which a witness is pointing out a stranger.  This will have an important impact on the criminal justice system and it will likely reduce the number of wrongful convictions in the State of New Jersey.  However, every change in the law or shift in the tug of war between parties has a positive and negative effect.  With these new jury instructions, jurors will be more skeptical of eyewitness testimony when a witness has identified the wrong person; however, the instructions will also make jurors more skeptical of eyewitness testimony when a witness has identified the right person.  Juror skepticism can of course be allayed by multiple eyewitnesses identifying the same person.  Other evidence tying the perpetrator to the scene, such as forensic evidence, is even more effective at allaying juror concerns.  

But what about the more personal, quick event crimes where the only evidence may be a victim pointing out their assailant?  These crimes are not by any means uncommon and may make up the majority of the criminal docket in some jurisdictions.   Jurors are already under the influence of the “CSI effect.” The “CSI effect” is a relatively modern phenomenon that has created an unreasonable expectation with the general public that in order to prove a defendant’s guilt investigators must find forensic evidence tying the defendant to the crime.  The phenomenon gets it namesake from criminal investigation shows, like CSI, that focus heavily on forensic investigations. Specific jury instructions and jury selection questions already exist to try and counteract the “CSI effect”, but their success is unknown.  As the general public becomes more aware of the problems with eyewitness testimony, could the “CSI effect’s” influence grow?  

New Jersey police and prosecutors are not resisting the new recording procedures and have been self-implementing them since an Attorney General directive in 2007. Both defense attorneys and law enforcement officials said they supported the new rules. Nonetheless, the new jury instructions will certainly have a negative impact on the State’s ability to prosecute crimes where the only evidence linking the defendant to the crime is a victim’s testimony.

Ryan David Hatley

Blogger, Criminal Law Brief