Criminal Defense: New Jersey Supreme Court Outlines Changes to Eyewitness Testimony

After ruling last year that New Jersey’s standard for eyewitness testimony was unreliable in the prosecution or criminal defense of a crime, the New Jersey Supreme Court has outlined related changes in how police will gather statements from eyewitnesses and how prosecutors present identifying testimony in court.

For years, criminal defense attorneys argued eyewitness identification was unreliable, and that police may purposefully or unknowingly influence witnesses into identifying a certain suspect. Past studies have shown that an eyewitness can be influenced by a range of factors including lighting, intoxication, racial bias, the amount of time a witness looks at a supposed suspect, and stress. The change in the approach to eyewitness testimony is the result of two cases involving police influence in the identification of suspects.

Under the new rules, police will record witness testimony in a new way. The new rule pressures officers to record or write down the conversation they have with an eyewitness about the identification of a suspect. The police must include the witness’s certainty regarding the suspect’s identity and whether the witness told anyone else about the identity of the suspect. However, the new rule may not be as effective as hoped because it does not require police officers to record the conversation.

The use of eyewitness testimony in court will also change, judges will have the discretion to allow testimony that does not meet the standards given to police and jury members will be issued new instructions specific to eyewitness testimony. Jurors will be told that “human memory is not foolproof,” it cannot accurately be played back like a video-recording, and it therefore must be “scrutinized carefully.”

The changes in the gathering and use of eyewitness testimony are set to begin after Labor Day, and criminal defense experts believe the New Jersey ruling and standards will become a new national standard.

Source: The Star-Ledger, “N.J. Supreme Court Imposing Sweeping Changes in Crime Witness Testimony,” MaryAnn Spoto, July 23, 2012