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Witness History

​THE NEW JERSEY Supreme Court recently issued a game changer in the world of eyewitness testimony. It ruled that scientific evidence offers proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. The court then issued a list of changes to how juries will be instructed to evaluate eyewitness testimony.

“Study after study revealed a troubling lack of reliability in eyewitness identifications,” the court wrote in its ruling. “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real.”

The issue is significant because of the number of times that eyewitness testimony has been a factor in reversing a conviction. According to The Innocence Project, eyewitness identification plays a role in more than 75 percent of convictions that are later overturned using DNA evidence.

There are many factors at play in eyewitness identification that can explain errors. Some do not get the attention they deserve, says Paul Michel, a doctor of optometry and a former Huntington Beach, California, police officer. He serves as a technical consultant reserve officer with the Los Angeles Police Department and says, “The difficulty that I have run into in the many cases where I have testified is, at the time of the crime, it is very rare to nonexistent that anybody is documenting the level of lighting at the crime scene, the exact distance, the factors that would involve movement, line of sight, and field of view.”

The New Jersey ruling states that the current standard for assessing eyewitness evidence is inadequate for measuring reliability and deterring inappropriate police conduct.

Under the new directive, the court system is expected to explain to juries the factors that may affect witness reliability. The court stresses that those factors are not etched in stone but include such things as lighting, lineup procedures, stress on the witness, time of interaction, and cross-racial identification.

While the ruling isn’t perfect, it is the most comprehensive treatment of the eyewitness identification matter that any court has ever issued, says Gary Wells, a professor of psychology at Iowa State University and an eyewitness identification expert. Wells testified to the New Jersey special master who produced the review of eyewitness evidence that was cited in the new ruling.

Wells concurs with the court’s decision not to broadly suppress eyewitness evidence that may be questionable but rather to allow it with greater explanation to juries. He says that is better than imposing a “Sophie’s choice between, on the one hand, either completely suppressing the identification, which no one is going to do, or doing nothing and simply saying ‘ah, just let the jury decide.’”

The types of caveats given to juries will likely evolve over time. Wells says the onus is on the courts to be the gatekeepers and stay up to date on the science of eyewitness identification.

New Jersey is the first state to take this sort of action on eyewitness testimony, but experts don’t think it will be the last. For states considering a change, “This provides them with something of a model or a blueprint to address these issues,” says Wells. He already sees signs of a nationwide impact and cites a recent case in Texas in which a capital murder conviction was remanded for review. “Once you get New Jersey and then you get something out of this very conservative Texas court, I think there’s going to be something of a chain reaction.”

The United States Supreme Court heard a case on eyewitness identification in November, the first case on the issue to come before the court in decades. The decision, not out at press time, could establish a new framework that lower courts will have to follow.