Chief Justice Rabner Reshaped the Use of Eyewitness Testimony

New Jersey State Supreme Court Chief Justice Stuart Rabner at the Statehouse in Trenton, New Jersey,  February 25, 2014. (Photo by Jeff Zelevansky/Getty Images)

New Jersey State Supreme Court Chief Justice Stuart Rabner at the Statehouse in Trenton, New Jersey, February 25, 2014. (Photo by Jeff Zelevansky/Getty Images) Jeff Zelevansky/Getty Images

Studies have found that faulty eyewitness testimony is the leading cause of wrongful convictions. New Jersey is one of the few states in the country where courts consider the growing body of scientific evidence that suggests the human memory is far from perfect.

In 2011, Chief Justice Stuart Rabner issued a landmark decision on the use of eyewitness testimony in criminal cases. He wrote: “The changes outlined in this decision are significant because eyewitness identifications bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”

The New Jersey Supreme Court’s decision in State v. Henderson established new ground rules for the admission of eyewitness evidence after finding that the current system failed to offer an adequate measure for reliability, did not sufficiently deter inappropriate police conduct, and overstated the jury’s ability to evaluate identification evidence.

Under the revised standard, when defendants provide evidence of suggestiveness, the court must conduct a pretrial hearing that explores all relevant system and estimator variables, which may include lineup procedures, the lighting conditions, the presence of a weapon, etc. Under the prior test used to in New Jersey (and still used in most states), courts were required to determine first if police identification procedures were impermissibly suggestive; if so, courts then weighed five reliability factors to decide if the eyewitness evidence was still admissible.

Justice Rabner and his colleagues did not take the changes lightly. The court appointed a Special Master to evaluate scientific and other evidence about eyewitness identifications. The information evaluated by the Special Master included more than 2,000 pages of expert testimony and hundreds of scientific studies. The findings convinced the court that the risks of misidentification are real and needed to be addressed. “We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications,” the opinion stated.
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As Justice Rabner further explained, “Th[e] evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. 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.”

Under Henderson, when eyewitness testimony is admitted into evidence, trial judges must use enhanced jury instructions that inform the jury about factors that can increase the risk of misidentification. The New Jersey Supreme Court amended its model jury instructions on eyewitness identifications to reflect the decision.

“The instructions are designed to minimize the risk of wrongful convictions and help jurors reach informed, just decisions,” Rabner said at the time.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Chief Justice Rabner Reshaped the Use of Eyewitness Testimony