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Understanding the New Eyewitness Identification Standards in New Jersey

Anthony N. Palumbo – New Jersey Criminal Defense Attorney – The Law Offices of Anthony N. Palumbo

A landmark New Jersey Supreme Court decision has raised questions about the reliability of police lineups and other eyewitness identification procedures. The decision requires courts to make sweeping changes in the way that they deal with eyewitness evidence during the criminal legal process, both to protect defendants from mistaken identifications and to protect the state’s interest in presenting reliable evidence at trial.

The decision involved an eyewitness identification that was a critical piece of evidence for the prosecution. The defendant claimed that the identification was unreliable, emphasizing that the witness had only seen the perpetrator in dark lighting, that he was intoxicated at the time, and that he waited more than a week to make to identification. Additionally, the detectives who conducted the photo lineup were assigned to the case, which violated the Attorney General’s guideline recommending that witness identifications should only be administered by neutral police officers.

Eyewitness identification under the old procedures

Prior to this case, the test for determining the admissibility of eyewitness identifications depended on whether the identification procedures were impermissibly suggestive. If a court found that they were, the identification would be deemed inadmissible unless the prosecution could provide sufficient evidence showing the reliability of the identification. In making this reliability determination, the courts considered five factors:

  1. the opportunity the witness had to view the criminal;
  2. the witness’s degree of attention;
  3. the accuracy of his prior description of the criminal;
  4. the witness’s level of certainty; and
  5. the time between the crime and the identification,

Scientific evidence questioning the reliability of eyewitness identifications

The New Jersey Supreme Court concluded that these procedures failed to offer adequate measures of reliability. The test was established in 1977, and the court emphasized that a substantial amount of scientific research over the past three decades has undermined the reliability of eyewitness identifications. As the court noted, studies have consistently shown that “memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications.”

System variables and estimator variables

The court explained that the factors influencing the reliability of eyewitness identifications fall into two categories: system variables (i.e., those that can be influenced by the police) and estimator variables (i.e., those beyond the control of the criminal justice system). Examples of system variables include any pre-identification instructions given to the witness, the manner in which a lineup is displayed, and post-identification feedback from police officers. Estimator variables include circumstances like the level of the witness’s stress, lighting conditions, race-bias (i.e., the tendency for witnesses to have more trouble identifying people of other races), and the extent of memory decay between the time of the crime and the time of the identification.

Problems with the old procedures for reviewing eyewitness identifications

One of the most serious flaws under the old test was that it prohibited courts from examining the reliability factors unless the police procedures were first found to be impermissibly suggestive-a prerequisite that could easily result in defendants being denied the opportunity to question identifications based on estimator variables. The five reliability factors, moreover, functioned as a checklist and prevented courts from considering other system and estimator variables that might be relevant. And even if a defendant proved that the police used impermissibly suggestive procedures, “three of [the five reliability] 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.”

Additionally, although the New Jersey Supreme Court and the U.S. Supreme Court previously found it sufficient to rely on juries to decide whether an identification was reliable, the court explained that “most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and ‘[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.'” The court also noted that most people, including jurors, “do not intuitively understand all of the relevant scientific findings. As a result, there is a need to promote greater juror understanding of those issues.”

New procedures for determining the admissibility of eyewitness identifications

In response to these deficiencies, the court devised a new test for reviewing the admissibility of eyewitness evidence. To merit an admissibility hearing under the new procedures, a defendant first has to produce some evidence of suggestiveness tied to a system variable. This evidence is not limited to impermissibly suggestive police conduct, however, resulting in a less demanding standard than the old procedures.

Next, if the defendant’s evidence of suggestiveness is found to be lacking, then the judge should end the proceeding and continue with the trial. On the other hand, if the judge agrees that there is some evidence of suggestiveness, then the hearing should be extended to consider both system and estimator variables. Unlike the old test, the new procedures do not limit the particular factors that can be considered.

Finally, if the court determines that the defendant has demonstrated a very substantial likelihood of misidentification, then the identification evidence should be suppressed. If the defendant does not make this showing, then the court should admit the evidence but prepare enhanced jury instructions to guide the jury regarding the various factors that may affect the reliability of eyewitness identifications.

Applying this test to the facts of the case, the court found that the detectives’ participation in the identification was suggestive, even though they merely encouraged the witness to pick a photo and did not try to influence his choice. As the court explained, just by urging the witness to make an identification, the detectives intimated that there was an identification to be made. This could have influenced the witness to make an identification, even though he had been instructed that the lineup might not include the perpetrator. While the defendant had already received a pretrial hearing, the court concluded that he was entitled to an expanded hearing considering all of the relevant variables, and not just the five factors previously recognized as affecting reliability. In particular, the court noted that the hearing “should consider [the witness’s] drug and alcohol use immediately before the confrontation, weapon focus, and lighting.”

Prospects for criminal defendants under the new standards

Although the new procedures for reviewing witness identifications give more protection to defendants, the court specifically declined to require a pretrial hearing in all cases, explaining that this could overwhelm the court system. The court also recognized that even under the new procedures, most witness identifications will be admitted into evidence. This makes it all the more important for juries to be provided with guidance regarding the scientific evidence related to memory and eyewitness identification, and the court ordered the preparation of new model jury instructions.

If you think you’ve been the subject of a mistaken eyewitness identification, talk to a New Jersey criminal defense lawyer as soon as possible.