“What did they really see?” This was the title of a New York Times editorial about the New Jersey Supreme Court’s recent decision to impose stricter guidelines for using eyewitness evidence. As I mentioned in a previous blog (“Eyewitness Identification Is Not Always Reliable“), on many occasions eyewitness identification is incorrect. However, eyewitness testimony often appears to be strong evidence to a jury. Because of this issue, the New Jersey Supreme Court has decided that eyewitness identification must now be reviewed carefully before being submitted to a jury.
Under the new guidelines, if the defendant’s criminal defense attorney presents evidence that the identification could have been mistaken or tainted, the judge must hold a hearing to evaluate the eyewitness testimony. Some of the issues that could be considered include:
1) The conditions at the time – how light or dark it was
2) How long the witness observed the event
3) Distance between witness and defendant
4) Characteristics of the witness and the defendant
5) The arrangement of the police line-up
And, if the eyewitness identification is deemed admissible, a judge must explain to the jury how eyewitness testimony can be mistaken.
I think this is an excellent idea. As a criminal defense lawyer, I have often encountered questionable eyewitness evidence in criminal trials. As the NY Times reports,
“Eyewitness identification has been a subject of hundreds of studies over the last three decades, showing that memory and perception can be highly unreliable. Of the 273 people freed from prison with DNA evidence by The Innocence Project in cases reshaping this area of law, three out of four were convicted with false identifications. “
Or in other words – 75% of the eyewitness identifications in that particular group were wrong. The editorial goes on to say that the decision was unanimous and “Chief Justice Stuart Rabner noted that misidentification is the leading cause of wrongful convictions across the country.”
The stricter guidelines will be followed only in New Jersey — so what does this mean for Louisiana? At this point, probably nothing. But there is a strong movement nationwide to address the reliability of eyewitness identification. I anticipate that other states, including Louisiana, will follow New Jersey’s lead at some point. Until the guidelines change, however, it is very important to hire a criminal defense attorney who will recognize and challenge potentially unreliable evidence at trial.