The New Jersey Supreme Court on July 19, 2012 released expanded jury instructions relating to eyewitness identification in criminal cases.  Last year, on August 24, 2011, the New Jersey Supreme Court issued a unanimous decision in State v. Henderson, which revised the legal framework for evaluating and admitting eyewitness identification evidence.  At the time, the court directed that jury instructions be revised to reflect the ruling.

The new jury instructions are the most advanced in the country in incorporating scientific evidence on human memory and eyewitness identifications.  For example, the new jury instructions state:  “Eyewitness identification evidence must be scrutinized carefully . . . research has shown that there are risks of making mistaken identifications. . . . Human memory is not foolproof.  Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened.  Memory is far more complex.”

The jury charge goes on to explain that memory can be affected by a variety of factors.  Among these are factors that occurred during the time of the offense and factors that occurred during procedures used by law enforcement that led to the identification of the defendant.

Among the factors during the offense that may affect the reliability of an identification are:  the stress the witness was under, the duration of observation and whether the witness was focusing on a weapon.  The charge also asks the jury to consider the consistency of the witness’s prior descriptions of the defendant.  The charge also admonishes the jury to consider that the witness’s confidence about the identification may not be an indication of reliability.  The jury charge also informs the jury that people may have greater difficulty identifying members of a different race.

Jurors are also to consider whether the reliability of the identification was affected by outside factors such as reports and pictures in the news.

Regarding identification during line-ups and other out-of-court police procedures and in-court identifications, the jury charge enumerates a number of factors for the jury to consider in evaluating reliability.  The new charge is path breaking in informing the jury to consider whether subtle influences were exerted on the witness by a line-up administrator who knew which person in the lineup was the suspect and whether feedback by the police to the witness influenced the confidence of the witness in the identification.

The new charge will surely impact jurisprudence on eyewitness identification in other states, as well as providing greater assurance in New Jersey that persons are not wrongfully convicted.