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.


Naturally Occurring Marijuana Plants

Governor Andrew Cuomo of New York announced yesterday that he will ask the State Legislature to decriminalize possession of small amounts of marijuana in plain view.  The action comes in response to the large number of criminal prosecutions of African American and Latinos for possession of marijuana open to public view arising from New York City’s aggressive “stop-and-frisk” policy.  Under the Constitution as construed by the Supreme Court, the police are entitled to pat down or frisk a person if the police officer reasonably believes that the person is committing, has committed or is about to commit a crime and the police officer reasonably believes that he or she is in danger of physical injury by virtue of the accused being armed.  Terry v. Ohio, 392 U.S. 1 (1968). 

In practice, the police don’t have a reasonable belief that their target is involved in crime, they pat down their target and feel a cell phone, and then ask the target to empty his or her pockets and go so far as to demand that the person take off his or her shoes.  When a small amount of marijuana is revealed, the target is charged with possession of marijuana in a public place a misdemeanor punishable by six months in jail, instead of the violation punishable by a $100 fine.  The violation is like a traffic ticket and is not a crime.

The practice has led to the stigmatization of a broad swath of the young, minority community making it difficult for the convicted to obtain work.  It also has led to a form of racial profiling.  According to The New York Times, from 2002 through 2011, New York City had 400,000 low-level marijuana arrests, more than the three mayoral administrations prior to Mayor Bloomberg, spanning 24 years, combined.  Last year, New York City arrested over 50,000 people for possession of small amounts of marijuana.

The policy has also caused deteriorating relationships between the police and the minority community.  While Police Commissioner Raymond Kelly issued a directive in September that police officers were not to arrest people who take small amounts of marijuana out of their pockets after being stopped, according to The Times, this resulted only in a modest decline in the number of arrests. 

After Governor Cuomo announced his proposal, both Police Commissioner Kelly and Mayor Bloomberg announced their support for it. 

Under Governor Cuomo’s proposal, it would still be a misdemeanor to smoke marijuana in public. 

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Stock Trading Board

A former attorney and associate at several large nationally-recognized firms was sentenced on June 4 to a 12-year term of imprisonment for his role in an insider trading scheme.  The scheme began in 1994 and resulted in $37 million in illegal gains.  Matthew Kluger faced 11 to 14 years in jail under the United States Sentencing Guidelines, which are advisory.

 U.S. District Court Judge Katherine Hayden, sitting in Newark, New Jersey, sentenced Kluger to what the Judge referred to as a harsh sentence.  Kluger passed on information concerning corporate mergers he learned as an associate at four different law firms to co-defendant Kenneth Robinson who passed it on to a stock trader Garret Bauer.  Bauer traded ahead of public announcements for the accounts of the three co-defendants.  The law firms involved are:  Cravath, Swaine & Moore; Skadden, Arps; Fried, Frank; and Wilson; Sonsini.  All are recognized nationally as top-quality law firms. 

According to the New Jersey Law Journal, the conspiracy involved more than 30 separate transactions.  Bauer took the greatest portion of the proceeds and was forced to give back $31.6 million.  Kluger forfeited $516,000, while Robinson forfeited $845,000 of illegal profits.

Conspirators are liable for the reasonably foreseeable acts of their coconspirators.  While Kluger argued he was misled as to the amount of the trading undertaken by his coconspirators, his sentence did not reflect the Court’s crediting of that argument.  The sentence also likely reflected the extent of the breach of trust by Kluger as an associate lawyer at four different law firms.

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In a path breaking and far reaching decision, the New Jersey Supreme Court recently recognized certain best practices in eyewitness lineup procedures.  See State v. Henderson, 208 N.J. 208 (2011).

Among the best practices that are more likely to ensure a greater level of reliability of the lineup procedure are:

a.  Administration of the lineup in a double blind fashion, that is, the administrator of the lineup should not know which person in the lineup is the defendant.

b.  Reading a statement to the witness that the defendant may or may not be in the lineup;

c.  In the event the witness makes a positive identification, the administrator should refrain from telling the witness that he or she made a correct identification.  Moreover,soliciting an indication in the witness’ own words of how certain the witness is about the identification will increase the reliability of the identification.

A double blind administration of a lineup occurs when the administrator does not know who the suspect is.  The New Jersey Supreme Court has determined that “a non-blind lineup procedure can affect the reliability of a lineup because even the best-intentioned, non-blind administrator can act in a way that inadvertently sways an eyewitness trying to identify a suspect.”  State v. Henderson, 208 N.J. 208, 250 (NJ 2011).  The court concluded, “failure to perform blind lineup procedures can increase the likelihood of misidentification.”  Id. at 250.  A double bind test “prevents the tester from skewing, even unintentionally, the test result.”  In the Matter of the People of the State of New York v. Wilson, 191 Misc.2d 224, 226 (Sup. Ct. Kings Cty. 2002).  Double blind testing has long been a near universally accepted staple of scientific research.  Id., at 228.  See also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending double-blind lineup procedures).

To help prevent misidentification, it also is important for the administrator of the lineup to read a statement to the witness to the effect that the perpetrator may or may not be in the lineup.  The Department of Justice guidelines recommend reading a statement that includes, “the person who committed the crime may or may not be present in the group of individuals.”  Eyewitness Evidence:  A Guide for Law Enforcement, U.S. Department of Justice, pp. 31-33 (1999); see also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending such a statement be read to the witness).

Post-identification feedback presents the risk that the witness’ memory will be affected by the feedback.  Confirmation by the police that a witness has correctly identified the suspect can reduce doubt and engender a false sense of confidence in a witness.  Henderson, 208 N.J. at 253.  Accordingly, prohibiting the police from confirming to a witness that the witness identified the suspect, will help reduce statements of inflated confidence at trial.  A confidence statement by the witness, that is a statement in his or her own words about how certain he or she is regarding the identification, will also help to ensure that the witness’ confidence level does not become affected by post-identification events.  Such a statement gives the jury a way to gauge the weight it should accord a witness’ identification.  Given the impact of post-identification events, the truer measure of certainty is the original statement made by the witness at the time of the identification.

The New Jersey Supreme Court has stated:  “To the extent confidence may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.  To avoid possible distortion, law enforcement officers should make a full record — written or otherwise – of the witness’ statement of confidence once an identification is made.  Even then, feedback about the individual selected must be avoided.”   Henderson, 208 N.J. at 254.


Source Code

On February 16, the Second Circuit overturned the conviction of Sergey Aleynikov, a former Goldman Sachs programmer, bringing to an end a critical prosecution by the federal government for the act of stealing source code.  Aleynikov had been found guilty after trial last year of violating the Economic Espionage Act of 1996 (“EEA”), 18 U.S.C. §1832, and the Interstate Transportation of Stolen Property Act (“ITSPA”), 18 U.S.C. § 2314.  He allegedly downloaded source code for Goldman Sachs’s high-frequency trading (“HFT”) system.  Aleynikov had served one year of a 97 month sentence before being released on February 17 after the Second Circuit ruling.  The Government may appeal the ruling to the Supreme Court.

Information available from the briefs filed before the Second Circuit give a good indication of the reasons for the ruling.  Aleynikov maintained in the court below and on appeal that downloading source code did not violate either of the two statutes.  Defendant argued that Goldman Sachs’s HFT was not produced for interstate commerce within the meaning of the EEA, having been produced for strictly internal use.  He also argued that the ITSPA, which prohibits interstate transportation of “goods, wares or merchandise,” did not include in its prohibition intangible, intellectual property such as source code.

Defendant asserted that every court that has addressed ITSPA has found that the statute does not criminalize the theft of intangible property.  Defendant also argued that the Government failed to establish a market – even a thieves market – for the stolen source code, as required to prove theft of “goods, wares or merchandise,” within the meaning of ITSPA.

Regarding the EEA, Defendant asserted that that statute proscribes theft of trade secrets “related to or included in a product that is produced for or placed in interstate or foreign commerce.”  Aleynikov argued that the statute does not federalize theft of trade secrets in the form of source code for a proprietary HFT system that was never intended to be placed in the stream of commerce.  The District Court below adopted a broader definition despite the language of the statute, namely, “produced for the purpose of engaging in” interstate commerce.  Defendant also maintained that the Government failed to prove that Defendant intended or knew his conduct would harm Goldman Sachs as required by the EEA.

Aleynikov had quit Goldman Sachs and was about to begin employment with Teza Technologies.  The founder of Teza, Misha Malyshev, had designed an HFT system for Citadel Investment Group.  Malyshev testified at trial that the system he built for Citadel made nearly four times what Goldman Sachs’s system earned in a year from HFT.  Malyshev testified further that he did not consider Goldman Sachs a significant competitor and would not have taken Goldman Sachs’s trading system if Goldman had offered it to him.

Aleynikov was sentenced to 97 months’ imprisonment, four times the recommendation of the United States Probation Office.  The Government asserted that the intended loss was $7 to $20 million.  Defendant argued this was unrealistic because he did not intend to harm Goldman Sachs and there was no market for the source code divorced from the rest of Goldman Sachs’s system.

The end result of the reversal is a significant setback to the Government’s effort to stem the tide of stolen source code through prosecutorial efforts.

The decision is reported at 676 F.3d 71 (2d Cir. 2012).

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On October 1, 2011, over 700 Occupy Wall Street protesters were arrested by New York City police as they marched on the Brooklyn Bridge. Trials of these demonstrators are now scheduled to start on June 13, 2012.  Most of the demonstrators were charged with disorderly conduct for allegedly impeding traffic.  During the demonstration, the main contingent of police officers met the demonstrators at the bottom of the bridge in Manhattan and then turned and appeared to lead the demonstrators onto the roadway and up the bridge toward Brooklyn.   Near the apex of the Bridge, the police suddenly turned on the crowd and unfurled netting at both the front and the rear of the march and arrested every person caught between the two nets.  

The Brooklyn Bridge mass arrest was one of a series of mass arrests undertaken by the New York City police and its mayor, Michael Bloomberg, to chill dissent over the favorable treatment accorded Wall Street after the 2008 economic debacle, which sent the country’s economy into a tailspin.  Many of the 99% lost their savings as the market dropped after the manipulations of Wall Street deep-sixed the economy.  Many of the 99% have never recovered the loss of their hard-earned savings and the nation’s economy continues to lope along at a snail’s pace as a result of the severity of the downturn.  Not only does the Republican Party continue to advocate preservation of huge tax cuts for the 1%, they also seek on a nationally-organized level to cut-off voter registration by passing bills in many states that  require the poor and disenfranchised to apply for state-issued identification cards to vote and enact punitive measures against organizations that hold voter registration drives. In this context, the chilling of dissent on the streets is just one more measure the 1% are taking to foster their anti-people agenda.   

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Brooklyn Bridge.