In New Jersey, Rules Are Changed on Witness IDs By BENJAMIN WEISER August 24, 2011 The New Jersey Supreme Court, acknowledging a “troubling lack of reliability in eyewitness identifications,” issued sweeping new rules on Wednesday making it easier for defendants to challenge such evidence in criminal cases. The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification. When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited. The decision applies only in New Jersey, but is likely to have considerable impact nationally. The state’s highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony. Stuart J. Rabner, the court’s chief justice, wrote in a unanimous 134-page decision that the test for reliability of eyewitness testimony, as set out by the United States Supreme Court 34 years ago, should be revised. The new rules come at a time of increased scrutiny of the eyewitness identification issue among lawyers, law enforcement officers and the scientific community. The opinion noted that task forces have been formed to recommend or put into effect new procedures to improve reliability. The State Supreme Court’s ruling was seen as significant because it was based in part on an exhaustive study of the scientific research on eyewitness identification, led by a special master, a retired judge, who held hearings and led a review of the literature on the issue. The special master, Geoffrey Gaulkin, estimated that more than 2,000 studies related to the subject had been published since the Supreme Court’s original 1977 decision, the court noted. “Study after study revealed a troubling lack of reliability in eyewitness identifications,” Chief Justice Rabner wrote. “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.” The decision listed more than a dozen factors that judges should consider in evaluating the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether the witness was identifying someone of a different race and the length of time that had elapsed between the crime and the identification. Chief Justice Rabner said the court had avoided “bright-line rules that would lead to suppression of reliable evidence any time a law enforcement officer makes a mistake.” The ruling instead allowed for a much more complete exploration of the factors involved in an identification “to preclude sufficiently unreliable identifications from being presented and to aid juries in weighing identification evidence.” Chief Justice Rabner noted that in the vast majority of cases, identification evidence would still be presented to a jury. “The threshold for suppression remains high,” he wrote. And because, in most cases, juries will continue to determine the reliability of eyewitness testimony, Chief Justice Rabner added, “it is essential to educate jurors about factors that can lead to misidentifications.” The ruling was praised by lawyers and legal groups that have pressed for reforms. “It’s a landmark decision,” said Barry C. Scheck, a director of the Innocence Project at the Benjamin N. Cardozo School of Law, which filed a friend-of-the-court brief in the case. Mr. Scheck, citing the New Jersey court’s national prominence and the large scientific record developed in the case, added, “It’s going to affect the way every state and federal court in the United States assesses eyewitness identification evidence, and what those courts tell juries about the factors that can increase the risk of misidentification.” In its ruling, the court cited findings by Brandon L. Garrett, a law professor at the University of Virginia, who documented in a recent book, “Convicting the Innocent,” eyewitness misidentifications in 190 of the first 250 cases of DNA exoneration in the country. Professor Garrett said the decision would provide a model for legislatures and courts around the country that “have been at a loss for what to do” and needed “a structure for how judges should handle identifications in the courtroom.” The United States Supreme Court is scheduled to hear arguments, in November, in its first significant eyewitness identification case in 34 years. The case, Perry v. New Hampshire, is concerned with whether judges must take a hard look at all identifications arising from suggestive circumstances or only those involving official misconduct. Joseph E. Krakora, the public defender who argued the case before the New Jersey Supreme Court, said the decision would “go a long way toward eliminating wrongful convictions based on mistaken identifications.” The New Jersey attorney general’s office, which the state court on Wednesday credited for developing early guidelines to address identification issues, said, “The court’s ruling embodies the promulgation of additional safeguards as opposed to an overhaul of the present system.” It called the ruling “careful and balanced.” Adam Liptak contributed reporting.

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