New Jersey Supreme Court Issues New Jury Instructions That Will Greatly Improve the Way Courts Handle Identification Evidence

(Trenton, NJ – July 19, 2012) – In the wake of a landmark ruling that was issued last year, the New Jersey Supreme Court issued new eyewitness identification jury instructions today that should greatly reduce the likelihood of wrongful convictions based on misidentification. The instructions, which are based on more than 30 years of scientific research, are the first in the nation that explain the way memory works and the factors that can affect the reliability of eyewitness identifications. Jurors will also be explicitly told that that they are based on science.

“These instructions will revolutionize the way that juries scrutinize identification evidence by bringing science into the court rooms across the nation,” said Barry Scheck, Director of the Innocence Project, which is affiliated with Cardozo School of Law. “These instructions are a must read for every state court chief justice and all federal judges.”

Misidentification is by far the leading cause of wrongful convictions, contributing to nearly 75% of the wrongful convictions overturned by DNA evidence. The jury instructions issued today are designed to educate jurors on how to properly evaluate identification evidence in light of the most up-to-date science.

In its 2011 decision in Henderson v. New Jersey, the New Jersey Supreme Court identified a number of factors that jurors should consider when deciding whether identification evidence is reliable. These 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.
• 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?
• How much time elapsed between the crime and identification?
• Whether the case involved cross-racial identification.

The instructions give jurors clear guidance about how to consider how these factors, when present, can affect the reliability of an identification. The instructions are available here. 

Other states, including Florida and Massachusetts, are considering revising their jury instructions on eyewitness identification and these instructions should serve as a model.

Upon agreeing to consider the appeal in Henderson, the New Jersey Supreme Court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by a Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010. The court’s decision, issued in August 2012, accepted much of the Innocence Project’s proposal to revise the legal framework through which eyewitness identification evidence is evaluated for admissibility. The Innocence Project’s proposal urged the inclusion of robust jury instructions designed to educate jurors about the factors that can lead to misidentification. Specifically, the New Jersey Supreme Court asked the Criminal Practice Committee and the Committee on Model Jury Charges, composed of judges, prosecutors, defense counsel, and other legal practitioners, to draft proposed revisions to the jury instructions and submit them for the Court’s review. The Innocence Project, joined by the American Civil Liberties Union’s Criminal Justice Reform Project and the New Jersey American Civil Liberties Union submitted comments to the court’s proposed instructions; Innocence Project Eyewitness Identification Fellow Karen A. Newirth gave testimony before the court concerning several minor changes to the otherwise excellent instructions drafted by the Committee. Two of these suggested changes – that jurors be specifically told how memory works and that the instructions are based on scientific research – were accepted by the court in the final charges issued today.

Additional information about eye witness misidentification can be found here.