New Jersey’s Supreme Court is putting tighter strictures on admission of
eyewitness identifications in criminal cases and offering better guidance
for jurors weighing such evidence.

The court on Thursday announced rule changes and new jury charges, effective
Sept. 4, that address IDs occurring out-of-court, in-court and in both
places.

Each charge tells jurors “Human memory is not foolproof” and research has
shown it is “not like a video recording that a witness need only replay to
remember what happened.”

The new instructions stem from the court’s mandate, in State v. Henderson,
208 N.J. 208 (2011), to replace the standards for evaluating
identifications, in light of evidence that they are often erroneous. Chief
Justice Stuart Rabner said eyewitness misidentifications are the leading
cause of wrongful convictions across the country, noting that they are at
issue in three out of five reversed convictions.

The court directed its Committee on Model Criminal Jury Charges to come up
with enhanced instructions to guide juries about the various factors that
may affect the reliability of an identification, to be included in the
closing jury charge as well as during trial, if warranted.

The new charges, which replace ones last revised in 2007, caution that
certain factors about an eyewitness’s circumstances at the time of the
offense could render the testimony less reliable. Those factors include the
stress the eyewitness was under, the event’s duration, lighting, distance,
the eyewitness’s focus on a weapon and cross-racial identification.

The charges require jurors to consider the procedures used by law
enforcement during the identification, such as the composition of a lineup
or photo array, and whether any spoken word or gesture by the police could
have suggested a specific defendant.

They emphasize that any single factor or combination of factors does not
mean the eyewitness is incorrect.

“The ultimate issue of the trustworthiness of any eyewitness identification
is for the jury to decide,” Rabner said in an accompanying press release.
“Only with a fully informed and properly instructed jury can justice be
served.”

The court also asked its Criminal Practice Committee to recommend
appropriate rule revisions.

The changes adopted, also announced Thursday, include a new Rule 3:11
governing the admissibility of identifications, which are usually obtained
by police using in-person methods like lineups or show-ups, or with
photographs set out in arrays or mug books.

Rule 3:11 requires a record of what happened during the identification
process and specifies that the record contain “details of what occurred,”
including the place, the dialogue between the witness and the officer who
handled the procedure and any identification or attempted identification
that resulted.

The committee’s proposal specified those same items and identified
additional “relevant factors” that did not have to be included in the report
but should be taken into consideration.

Rule 3:11 makes those other things mandatory too, in line with alternative
proposals contained in dissenting opinions from representatives of the State
Bar Association and the Office of the Public Defender.

Those other criteria are: a statement in the witness’s own words about how
confident he or she is that the right person was picked out; information
about anyone else with whom the witness spoke before, during or after the
process, as well as what was said; a photograph of any live lineup; any
photo lineup array or mug book used; and the identity of anyone present
during the process.

Dissenting committee member Richard Barker, a deputy public defender
representing the State Bar, had written it “would be hard to instruct a jury
to consider certain things like a witness statement of confidence in
assessing credibility of identity” if it was not mandatory to record that
statement.

Assistant Attorney General Boris Moczula, also a committee member, had
opposed mandating a statement of confidence and who the witness spoke to,
saying the lack of such information “does not per se negate admissibility.”

In specifying the method and nature of the record, the adopted rule again
exceeded the committee proposal.

It calls for a written and contemporaneous record or, if feasible, an
electronic one. If it cannot be contemporaneous, it must be prepared “as
soon as practicable and without undue delay.”

Also if feasible, it must be verbatim and failing that, there should be a
“detailed summary.”

Under the proposed rule, even a written record was subject to feasibility
and it did not have to be verbatim.

The public defender representative, Jeffrey Coghlan, had also asked for
language clarifying the court’s “gatekeeper” role in keeping out unreliable
identifications.

The court obliged with a remedy provision, saying that if “important
details” are missing about what happened and “if it was feasible to obtain
and preserve those details,” the court “may, in its sound discretion and
consistent with appropriate case law,” declare the identification
inadmissible, redact parts of the testimony, and/or “fashion an appropriate
jury charge to be used in evaluating the reliability of the identification.”

The court also added language to an existing Rule, 3:13-3, as suggested by
the committee, that requires prosecutors to disclose, as part of discovery,
all records relating to the identification process, including notes, reports
and electronic recordings.

Public Defender Joseph Krakora said in a statement, “We are pleased that the
Supreme Court has adopted jury charges in eyewitness cases that incorporate
years of scientific research on the nature of memory. The new jury charges
should help reduce the risk of wrongful convictions based on mistaken
eyewitness identification. The new court rule adopted by the Court should
also further reduce that risk.”

Barker, commenting in his role as chairman of the State Bar’s Criminal Law
Section, calls the charges “a first major step toward making jurors aware of
the fallibility of eyewitness identifications, which the common person has
probably felt was the strongest evidence in the case, while in fact,
scientific study reveals that it is not.”

Defense lawyer Alan Zegas of Chatham thinks the court should have gone
further by mandating electronic recordation, for instance. He also notes
that the changes do not address the concern in Henderson that
identifications be conducted by someone other than the investigating officer
to reduce the risk of contaminating the result.

Peter Aseltine, a spokesman for the attorney general, says the office is
still reviewing the new jury charges and court rule.

New Jersey Law Journal