New Jersey Leads the Way on Eyewitness Identification Reform


by Karen Newirth, Eyewitness Identification Litigation Fellow


The New Jersey Supreme Court has done it again! In its landmark 2011 decision in

State v. Henderson

, New Jersey became the first jurisdiction in the country to reject the scientifically flawed test for evaluating eyewitness identification evidence set forth in the 1977 U.S. Supreme Court decision in

Manson v. Brathwaite

and adopted by every state in the years since. Now, the court registers another first with the issuance of comprehensive jury instructions for cases involving eyewitness identification evidence. These instructions represent a true revolution by bringing science into the courtroom and making research findings concerning the many factors that affect the reliability of eyewitness identifications available to jurors.


The Innocence Project previously


the draft instructions submitted for the court’s review, noting that they were scientifically-based, comprehensive, and consistent with both the letter and spirit of the Court’s decision in


. As previously


, the Innocence Project, joined by the Criminal Justice Project of the American Civil Liberties Union and the ACLU of New Jersey, raised several concerns during the court’s open comment period. Chief among them was the concern that the proposed instructions did not explain to jurors how memory works, which we believe is a necessary precursor to understanding how conditions at the time of the crime or at the time of the identification procedure could affect the accuracy or reliability of a person’s memory. The Innocence Project also registered an objection to the proposed instructions’ failure to tell jurors that the instructions were based on scientific research because it is critical for jurors to understand that the instructions not only have the weight of law but also – and particularly because some are counter-intuitive – reflect more than thirty years of rigorous scientific research. The New Jersey Supreme Court added language to the final instructions that address both of these concerns.


The Innocence Project again hails the New Jersey Supreme Court for its visionary approach to the problem of eyewitness misidentification, the leading cause of wrongful convictions. The use of comprehensive jury instructions, together with other trial-based remedies (including, where relevant, the testimony of expert witnesses, limitations on the testimony of witnesses. and cautionary instructions) will reduce the risk of wrongful convictions based on eyewitness misidentification for New Jersey defendants. New Jersey – whose law enforcement agencies have been required to employ all of the scientifically-supported best practices for the collection of eyewitness identification evidence since 2001 – is the national leader in all aspects of eyewitness identification reform. The Innocence Project urges other state legislatures and judiciaries to adopt similar reforms to police procedures and the legal framework for the consideration of eyewitness identification evidence. It is through reforms like these that we can reduce the likelihood of wrongful convictions predicated on eyewitness misidentification.

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