New Jersey on the Way to Better Jury Instructions for Eyewitness Identifications


By Karen Newirth, Eyewitness Identification Litigation Fellow


New Jersey may soon become the first state in the nation to adopt comprehensive, scientifically-based jury instructions addressing those variables that can undermine the reliability and accuracy of eyewitness identifications. These instructions – proposed by two New Jersey State Court committees at the direction of the New Jersey Supreme Court – go a long way toward carrying out the New Jersey Supreme Court’s mandate in

State v. Henderson

, that jurors hearing cases involving eyewitness identification evidence be given all of the necessary information to properly weigh this critical evidence. Comprehensive jury instructions, together with the robust new legal framework adopted by the New Jersey Supreme Court in


(decided August 24, 2011) will offer defendants in New Jersey meaningful safeguards against the leading contributing cause of wrongful convictions: eyewitness misidentification.


Consistent with the New Jersey Supreme Court’s decision in


, the New Jersey Supreme Court Committee on Model Criminal Jury Charges and the New Jersey Supreme Court Criminal Practice Committee drafted and approved proposed revisions to the eyewitness identification jury instructions, which were then the subject of public review. On Thursday, April 5, 2012, the Innocence Project, joined by the American Civil Liberties Union’s Criminal Law Reform Project (ACLU-CLRP) and the American Civil Liberties Union of New Jersey (ACLU-NJ), filed comments to the proposed revised jury instructions.


The Innocence Project, which appeared as a

friend of the court in


, was an integral part of the process that ultimately led to the

New Jersey Supreme Court’s landmark decision

, commended the work of the Committees and hailed the instructions as largely excellent. In the main, the proposed revised jury instructions reflect the vast body of scientific research in the area of eyewitness identification and memory and represent both the letter and spirit of the Court’s decision in




The Innocence Project, ACLU-CLRP, and ACLU-NJ were most concerned that the proposed instructions did not include a sufficient description of how memory works, including the stages of memory, and do not indicate that the instructions are the product of research. The Innocence Project, ACLU-CLRP, and ACLU-NJ believe that this information is critical to ensure that jurors understand how specific variables, whether at the time of the crime or the time of the identification procedure, can contaminate a witness’s memory of the event and undermine (or enhance) the reliability or accuracy of an eyewitness identification. This is particularly important because scientific research shows that jurors generally do not understand how memory works or how variables can affect memories. The legal groups also provided specific comments where necessary to clarify a proposed instruction or to ensure that an instruction represents the Court’s opinion in


or the scientific research. Finally, the groups urged the Court to require that whenever a particular instruction is given about suggestive identification procedures, it be given before the first witness testifies about eyewitness identification evidence. We believe that these modest adjustments will improve the excellent proposed revisions drafted by the Committees and will ensure that the jury instructions, together with the new legal framework set forth in


, will help to protect defendants in New Jersey from wrongful convictions based on eyewitness misidentification.

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