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F 315 Note 21 Eyewitness: Need For “Enhanced” Jury Instructions

Factors Affecting Reliability Of Eyewitness Identification (New Jersey)

2011-12-22T03:00:00.000-08:00

After an exhaustive evaluation of the latest scientific studies and literature State v. Henderson (NJ 2001) 208 N.J. 208, 27 A3d 872 concluded that the factors which affect the reliability of eyewitness identification include the following:

System Variables: whether the procedure was performed blind or double-blind, or with some other safeguard to ensure that the administrator had no knowledge of where the suspect appeared in the lineup; whether neutral pre-identification instructions were given to the witness; how well the lineup was constructed (presenting an adequate number of filler photos or individuals, choosing photos/participants that fit the witness's description, sequential administration of photos); whether the witness received any feedback about the suspect before, during or after the identification; contemporaneous recording of the witness's reactions when viewing the lineup ; whether the witness's confidence in the identification was reported immediately and before the possibility of any confirmatory feedback; avoiding confirmatory feedback after an identification; and avoiding multiple viewings of the same suspect in successive lineups; whether the witness had spoken with anyone outside of law enforcement about the identification, and what was discussed; and whether the witness initially chose someone other than the suspect in the lineup. [If a one-person showup is at issue, the court should determine whether it was performed more than two hours after the event, since research has shown that the accuracy of identifications drops off significantly after that time.]

Estimator Variables: whether the event involved a high level of stress; whether a visible weapon was used during a crime of short duration; how much time the witness had to observe the event; the distance and lighting conditions; relevant characteristics of the witness that would affect his or her ability to see or recall the event (including age and intoxication); relevant characteristics of the perpetrator that might impede an accurate identification (e.g., hat, sunglasses, facial hair); memory decay; cross-racial identification; exposure to suggestion by private actors such as other witnesses; and the time between the event and the lineup; and the speed with which the witness makes an identification from a lineup.

The court evaluated the effect of each of those factors on the accuracy of identifications, citing literature and expert testimony from the hearing. The court also evaluated evidence from studies measuring jurors' understanding of the science of memory and the psychology of eyewitness identification. The studies concluded that jurors often hold beliefs that run counter to the reality reflected in the research.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™

Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Forecite California™

F 315 Note 20 Factors Affecting Reliability Of Eyewitness Identification

The Manson v. Brathwaite (1977) 432 US 98 Test Needs to Be Revised (New Jersey)

2011-12-21T03:00:00.000-08:00

On the strength of the evidence before it, State v. Henderson (N.J. 2011) 208 N.J. 208, 27 A3d 872 determined that the factors supporting admissibility of an identification articulated in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], are no longer valid in light of subsequent research findings. (Id. at 286.) Those factors, as stated in Manson, "include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." (Id., 432 U.S. at 114.) “But three of those factors – the opportunity to view the crime, the witness' degree of attention, and the level of certainty at the time of the identification – rely on self-reporting by eyewitnesses; and research has shown that those reports can be skewed by the suggestive procedures themselves and thus may not be reliable. Self-reporting by eyewitnesses is an essential part of any investigation, but when reports are tainted by a suggestive process, they become poor measures in a balancing test designed to bar unreliable evidence.” (State v. Henderson, 208 N.J. at 286.)

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™

Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Forecite California™

F 315 Note 19 The Manson v. Brathwaite(1977) 432 US 98 Test Needs to Be Revised

New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications

2011-12-20T03:00:00.000-08:00

State v. Henderson (N.J. 2011) 208 N.J. 208, 218, 27 A3d 872 found “convincing proof” that the current test for evaluating the trustworthiness of eyewitness identifications unreliable. “Study after study revealed a troubling lack of reliability in eyewitness identifications. 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. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.” (Ibid.)

Henderson challenged the eye witness identification on the ground that the officers unduly influenced the choice of Henderson's photo. The trial judge ruled against Henderson but the intermediate appellate court reversed the conviction based on the suggestive lineup procedure which violated the attorney general’s eye witness guidelines which required that the officer conducting the photo lineup not know which of the photos is the suspect. The New Jersey Supreme Court granted certification and granted applications by the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to appear as amici curiae. The amici argued, among other things, that the state's court-created procedures for determining the admissibility of eyewitness identification testimony, which were based on the test articulated by the United States Supreme Court in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], were outdated and problematic in light of more recent scientific research. In response, the state Supreme Court appointed a Special Master to evaluate the scientific and other evidence about eyewitness identification. The Special Master held a ten-day hearing, at which seven experts testified and 200 scientific articles were admitted into evidence, and issued an extensive report. The Innocence Project called witnesses in addition to those called by the parties.

In an opinion that is a compendium of the scientific research about eyewitness identification and the role of various factors that contribute to the misidentification of suspects the Supreme Court concluded that "the science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications." (State v. Henderson, 208 N.J. at 283 [internal quotations marks omitted].)

In sum, the opinion is a comprehensive and valuable resource for researching sources of error in eyewitness identifications.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™

Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Forecite California™