New Jersey Judge to Hear Case on Eyewitness Guidelines

State is a leader in using lineup procedures that reduce misidentifications; Innocence Project urges court to take steps to examine eyewitness evidence more closely and provide better guidance to juries

Contact:  Alana Salzberg; 212.364.5983; ASalzberg@innocenceproject.org

(NEWARK, NJ; September 23, 2009) – An unusual court hearing will begin on Thursday, September 24, at 9:30 a.m., in Newark to determine how best to integrate three decades of important social science research regarding procedures that minimize the chance of mistaken identification into criminal trials. The Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University, will present a range of testimony and research to the court and said the hearing could put New Jersey even further at the forefront of preventing wrongful convictions based on eyewitness misidentification.  

New Jersey was one of the first states in the nation to adopt reforms in how lineups are conducted. Those reforms help prevent misidentifications that can lead to wrongful convictions. But when those reforms aren’t used, the eyewitness testimony that reaches the courtroom is less reliable, and yet jurors do not receive appropriate guidance on how to understand and assess such evidence.  The hearing that starts this week will explore how to address the problems associated with eyewitness identification evidence, particularly when it has been contaminated by suggestive procedures.

Noting that more than 75% of wrongful convictions overturned with DNA testing involved eyewitness misidentification, the Innocence Project will lay out a legal framework for relying on social science to review eyewitness evidence in criminal trials. Over the last 30 years, scientific research in the area of eyewitness identification has shown how and why witnesses sometimes misidentify perpetrators of crime – and how misidentifications can be reduced.  

The hearing that starts Thursday will last for several non-consecutive days. It stems from the 2004 conviction of Larry Henderson for reckless manslaughter and weapons possession charges related to a fatal shooting in January 2003. Henderson received an 11-year prison sentence.  He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson.  Before that could occur, the state appealed, and the Supreme Court decided that an all-out inquiry into witness identification procedures currently used by law enforcement is necessary.  In addition to the Innocence Project, the public defender representing Larry Henderson will present a range of testimony and research.  Beyond Henderson’s case, the outcome of the hearing will have statewide ramifications for all law enforcement.

Background on Eyewitness Identification in New Jersey:



The most common element in all wrongful convictions later overturned by DNA evidence is eyewitness misidentification.  Despite solid proof of the inaccuracy of traditional methods – and the availability of simple measures to improve them – eyewitness identification remains among the most common and compelling evidence brought against criminal defendants.

Misidentifications don’t only threaten the innocent, they also derail investigations. While police focus on finding evidence against an innocent person, the perpetrator can get away.

In 2001, the State Attorney General of New Jersey instated guidelines for preparing and conducting photo and live lineup identification procedure, in part as a response to one 1998 study of DNA exoneration cases where 90% of the cases analyzed involved one or more mistaken eyewitness identifications. The guidelines, which apply to both adult and juvenile cases, incorporated more than 20 years of scientific research on memory and interview techniques.  

With these guidelines, New Jersey became the first state in the country to officially adopt the recommendations issued by the United States Department of Justice in its Eyewitness Evidence Guidelines. 

Click here for more on the guidelines

. (PDF)

Specific recommendations to the guidelines include but are not limited to:




Admissibility of Expert Testimony


Courts should allow greater use of expert witnesses, by both the defense and prosecution, especially at pre-trial hearings.  Hearing an expert witness at a pre-trial hearing will not only assist courts in making findings about suggestion, contamination and unreliability, but will give courts a much better basis for deciding whether the jury should hear expert testimony about event related variables that reduce identification accuracy and increase the chance of a mistaken identification.

Narrowly Tailored Jury Instructions


Courts should devise a set of jury instructions that guide jurors in their evaluation of identification evidence—based on scientific research tailored to improve the harm that the “Guidelines” were designed to prevent.  Research has shown that despite jurors having little exposure to the scientific research on memory, they place a lot of weight on eyewitness identification and are unable to differentiate between accurate and inaccurate identifications.

Refine Standard for Admissibility of Eyewitness Evidence


Courts should refine the standard of admissibility for both out of court and in court identification evidence.  Instead of keeping evidence out of court if there is a substantial likelihood of an irreversible misidentification, evidence should be barred if there is a reasonable likelihood of a misidentification.

A Strong and Direct Cautionary Instruction


Courts should be encouraged to give strong and direct cautionary instructions about the identification evidence when they have serious doubts about its reliability but do not feel that the high threshold for suppression has been met.