The New Jersey Supreme Court, perhaps more importantly, also issued new instructions for jurors on eyewitness identifications. These instructions caution jurors to consider various factors that could make such identifications less reliable. Some of the warnings are that human memory is not fool proof. Research has revealed that human memory is not like a video recording, and that a witness need only replay an event to remember what happened. Memory is far more complex. Additionally, research has shown that people may have greater difficulty in accurately identifying members of a different race.
None of the new instructions are controversial for their
content. Quantitative studies have shown that the biggest culprit in wrongful
conviction cases is faulty eyewitness testimony. These studies, among others, also show that
eyewitnesses are prone to make the greatest mistakes when identifying strangers
of a different race. Opportunities for
eyewitnesses to make comparisons between suspects during lineups or
photo-arrays just exacerbate these issues.
The Supreme Court of the United States in
January of this year had an opportunity to take the issue of eyewitness
testimony but declined to make any changes to jury instructions or evidentiary
restrictions. See Perry v. New Hampshire, 132 S. Ct. 716 (2012). However, there appears to be a greater
willingness at the state level to implement changes similar to New Jersey’s
eyewitness instructions. Elizabeth
Loftus, a professor of law, psychology and cognitive science at the University
of California Irvine, anticipates that several states will adopt similar
changes following the New Jersey decision. Professor Loftus is currently working with a
judge in Pennsylvania to adopt a new instruction for that state based off the
New Jersey Supreme Court instruction.
The new instruction is bound to make jurors more suspect
of eyewitness identifications, particularly ones in which a witness is pointing
out a stranger. This will have an
important impact on the criminal justice system and it will likely reduce the
number of wrongful convictions in the State of New Jersey. However, every change in the law or shift in
the tug of war between parties has a positive and negative effect. With these new jury instructions, jurors will
be more skeptical of eyewitness testimony when a witness has identified the
wrong person; however, the instructions will also make jurors more skeptical of
eyewitness testimony when a witness has identified the right person. Juror skepticism can of course be allayed by
multiple eyewitnesses identifying the same person. Other evidence tying the perpetrator to the
scene, such as forensic evidence, is even more effective at allaying juror
concerns.
But what about the more personal, quick event crimes
where the only evidence may be a victim pointing out their assailant? These crimes are not by any means uncommon and
may make up the majority of the criminal docket in some jurisdictions. Jurors
are already under the influence of the “CSI
effect.” The “CSI effect” is a
relatively modern phenomenon that has created an unreasonable expectation with
the general public that in order to prove a defendant’s guilt investigators
must find forensic evidence tying the defendant to the crime. The phenomenon gets it namesake from criminal
investigation shows, like CSI, that
focus heavily on forensic investigations. Specific jury instructions and jury
selection questions already exist to try and counteract the “CSI effect”, but their success is
unknown. As the general public becomes
more aware of the problems with eyewitness testimony, could the “CSI effect’s” influence grow?
Ryan David
Hatley
Blogger, Criminal Law Brief
thank you :)
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