Special Master Appointed by N.J. Supreme Court Calls for Major Overhaul of Legal Standards for Eyewitness Testimony

Opinion is First in Nation to Recognize that Major Scientific Developments on Eyewitness Evidence Require Modernization of Legal Rules; Judge Strongly Endorses Innocence Project’s Recommendations for New Legal Architecture

(TRENTON, NJ, June 21, 2010) — A Special Master appointed by New Jersey’s top court is calling for a major overhaul of the legal standards for the acceptance of eyewitness testimony in court, citing 33 years of robust scientific research on memory and interview techniques.  The Special Master’s opinion was made public in a 64-page report today following an unprecedented hearing on eyewitness identification science and law that began in September 2009.

The most significant finding being transmitted to the New Jersey Supreme Court is that the legal test used by 48 states and the federal courts to determine the reliability of eyewitness testimony is full of “flaws and inadequacies” and should be replaced.

Among the findings that led to this conclusion:

• Suggestive identification procedures can falsely inflate the reliability of eyewitness testimony, leading courts to accept evidence that should be rejected.

• Eyewitness memory is more like physical trace evidence than a videotape recording and should be treated accordingly because it can be contaminated, degraded or mishandled.

• Not just law enforcement but “outside actors” (e.g., other witnesses or family members) can contaminate a witness’ memory, and courts should take this into account when reviewing the reliability of testimony.

The court also recommended that prosecutors – not defendants – should bear the burden of proof regarding the reliability of eyewitness testimony, and that juries as well as judges should be fully informed as to the factors proven by science to impact eyewitness ID reliability.

“Taken together, these findings represent a sea change in the treatment of eyewitness identification, both in the collection of evidence and in its presentation to juries,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “We are grateful to the Special Master for his diligence in assembling this exhaustive report and in creating the most extensive record to date on the scientific and legal standards that should be applied to eyewitness evidence.”

The findings of both science and law issued by the Special Master, retired judge Geoffrey Gaulkin, could eventually serve other states as a blueprint for revamping both their witness identification protocols and their rules regarding the use of such evidence in court, according to the Innocence Project, which was asked by the court to present testimony in an unusual extended hearing last year.  Many of the Innocence Project’s own voluminous legal findings and recommendations were adopted in the Special Master’s report.  The scientific research alone was so extensive that it was transmitted on a DVD that, if printed out, would encompass several thousand pages.

“We are pleased that the Special Master’s findings embrace the scientific research, and state unequivocally that solid, up-to-date science must be fully integrated into New Jersey’s criminal justice system,” said Ezekiel Edwards, a staff attorney with the Innocence Project and a co-author of the Project’s report to the court.  “New Jersey has long been a leader on eyewitness identification procedures, and we expect that, as in the past, other states will follow suit.”

Mistaken identification is the most common element in a wrongful conviction, Edwards said, noting that nationally, 75 percent of the 254 DNA exonerees released since 1989 were sent to prison based on witness misidentification.  Three of the five exoneration cases in New Jersey involved misidentification.

The court’s report stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, 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 New Jersey Supreme Court decided that an all-out inquiry into witness identification procedures currently used by law enforcement was necessary. (The Innocence Project does not represent Henderson, who has since completed his sentence.)

Specifically, in appointing the Special Master, the New Jersey Supreme Court ordered a review of the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.

The two-part test is designed to determine first whether eyewitness procedures used by police to identify a suspect were impermissibly suggestive, and if so, whether the identification is nonetheless reliable under a five-factor test.  If, despite problems with the procedures, there does not exist a “very substantial likelihood” of an “irreparable” misidentification, a court must admit the identification into evidence.

In his report, the Special Master unequivocally rejected the test as inadequate, stating: “The short answer to the Court’s question whether the Manson/Madison test and procedures are ‘valid and appropriate in light of recent scientific and other evidence’ is that they are not.”

A crucial problem with the legal test, Judge Gaulkin found, is that some of the “reliability” factors upon which courts rely tend to falsely inflate errors in identification.  For instance, courts look to how confident witnesses are in their identifications, and yet a police officer can unconsciously lead a witness to pick a certain suspect, which will then artificially inflate the witness’s certainty in the accuracy of her “memory” of having seen that suspect commit a crime, even though the wrong person has been identified. Aspects of the police lineup (known as the “system variables”) combined with the factors related to the incident itself (“estimator variables”) can combine to create a powerful – but false – identification, numerous studies have found.

In seeking a remedy to these problems, the court endorsed as “sound” the Innocence Project proposal that courts examine the full range of scientific variables through the testimony of eyewitnesses and police officers at pre-trial admissibility hearings, and that both judges and juries be well-versed on the decades of scientific research in the field of eyewitness evidence.

The Special Master also agreed with the Innocence Project’s recommendation that, as with the treatment of physical evidence, every case involving eyewitness identification should include procedures to test its reliability, and that many more factors that can affect reliability should be considered.

The Special Master’s report is expected to carry significant weight with the New Jersey Supreme Court, which will now take the findings into consideration in reviewing the Henderson case.  The issue will be briefed over the summer, and oral arguments are expected to take place this fall. Acceptance of the findings would result in a major overhaul of how eyewitness testimony is treated in New Jersey courts, and other states are expected to follow suit.

Lawrence Lustberg of the Gibbons firm in New Jersey and Ellen Lubensky assisted the Innocence Project in this case.

Read the NJ Supreme Court’s remand order requesting a review of the Manson test:

Read the Special Master’s report here.

Read more about the three men in New Jersey wrongfully convicted due to mistaken eyewitness identification: David Shephard (1995), McKinley Cromedy (1998), and John Dixon (2001).

Read a fact sheet on eyewitness identification reform.

Look at the map of eyewitness identification reform policies by state here.

Read the Executive Summary “Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification.”

Media Contact:
Alana Salzberg; 212-364-5983; ASalzberg@innocenceproject.org