New Jersey Revamps Test for Eyewitness Identifications
By Natasha A. Saggar, Litigation News Associate Editor – December 5, 2011

Acknowledging “eyewitness misidentification is the leading cause of wrongful convictions across the country,” the New Jersey Supreme Court recently adopted a revised framework for assessing the admissibility of eyewitness identification evidence. Under the new guidelines, when a defendant can demonstrate some evidence of suggestiveness in the identification process, the court must grant a pretrial hearing to explore all relevant variables that can affect the reliability of eyewitness identification. The court also called for enhanced jury charges to improve jurors’ understanding and evaluation of eyewitness identification evidence.

Recognizing the Ongoing Concerns Surrounding Eyewitness Identifications
In New Jersey v. Henderson [PDF], the state’s high court compiled a comprehensive body of scientific research and concluded “that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications.” There are two categories of variables. First are system variables—those within the government’s control, such as blind administration of the lineup, pre-identification instructions, and construction of the lineup. In addition, there are estimator variables—those outside of the government’s control, such as stress, distance and lighting, and witness characteristics.

The New Jersey Supreme Court noted that in its state, eyewitness misidentifications accounted for 60 percent of DNA exonerations; nationwide, that number was more than 75 percent. Accordingly, the New Jersey court determined that the current standard for assessing eyewitness identification, as laid out by the U.S. Supreme Court over three decades ago in Manson v. Brathwaite, “does not offer an adequate measure for reliability[.]”

Seeing Beyond Manson
Under Manson, a defendant must show some proof of impermissibly suggestive police procedures during an eyewitness identification to obtain a pretrial hearing on the admissibility of the evidence. If the court determines the procedures are not “impermissibly suggestive,” then the trial judge will admit the eyewitness evidence without considering any other variables that might bear on the reliability of the identification. Where the identification is questionable, the remedy under Manson is to suppress the evidence entirely—an option that few judges choose.

Under the new Henderson approach, a trial court may consider all relevant variables at a pretrial hearing when a defendant can demonstrate some actual evidence of suggestive procedures by state or private actors—a system variable—during an eyewitness identification. If the defendant can prove, based on the totality of the circumstances, “a very substantial likelihood of irreparable misidentification,” then the trial judge will suppress the eyewitness evidence.

This is a high burden of proof, “a standard akin to the ‘clear and convincing’ standard,” says Hon. J. Michelle Childs, Greenville, SC, cochair of the ABA Section of Litigation’s Trial Evidence Committee. Thus, the Henderson court states that it anticipates that courts will still admit eyewitness identification evidence in most cases.

Court Envisions Revised Model Jury Instructions
To help juries weigh that evidence, the Hendersoncourt tasked the New Jersey Supreme Court’s Criminal Practice Committee and the Committee on Model Criminal Jury Charges with revising the current model jury instructions. These committees are to take into account the many variables that can affect the reliability of eyewitness identifications.

The enhanced jury instructions are an important element of the Henderson decision. Thirty years ago, U.S Supreme Court Justice Brennan acknowledged “there is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’” However, revised “jury instructions together with good closing arguments by defense counsel will be the neutralizer” for powerful and convincing in-court identifications, says Hon. Ruben Castillo, Chicago, cochair of the Section of Litigation’s Trial Practice Committee.

“If you can focus the juror on those factors that objectively make the biggest difference in whether or not the identification is reliable or unreliable, then the entire truth-finding process is significantly advanced. That’s what this whole new legal architecture does,” says Barry C. Scheck, New York, codirector of the Innocence Project and cochair of the ABA Criminal Justice Section’s Science, Technology, and Forensics Committee.

Far-Reaching Impact for Henderson?
Some observers have touted Henderson as a landmark ruling. Although the decision only currently affects the standard for admissibility of eyewitness identification evidence in New Jersey, it has the potential to resonate beyond the state’s borders.

The decision “will accelerate the movement among state legislatures and police officials to accelerate best practices based on good science,” predicts Scheck. Some experts believe that, over the long haul, the sheer repetition of Henderson style jury instructions, much like Miranda warnings, may become part of the common wisdom of the American public. The wisdom here would be that eyewitness testimony is not foolproof.

Henderson may also figure prominently in Perry v. New Hampshire, which the U.S. Supreme Court is hearing this term. In Perry, the Court will decide whether due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, or only when law enforcement has orchestrated the suggestive circumstances. The Court may use the case as an opportunity to reexamine its 1977 Manson decision, and its model for protecting against unreliable eyewitness identifications. If so, Henderson’s extensive scientific record would offer a helpful starting point for the Court’s analysis.

Keywords: litigation, New Jersey Supreme Court, eyewitness identification, jury instructions, pretrial hearings, trial practice, trial evidence, criminal litigation

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