The New Jersey Supreme Court recently released new standard jury instructions in recognition of the need to provide better guidance to jurors on how to properly evaluate the myriad variables that affect the reliability of eyewitness evidence. These instructions inform jurors of the numerous system and estimator variables that may exist in a case and may cause a misidentification.
System variables are those within the control of the criminal justice system, such as the the procedures used to collect the eyewitness identification or whether the photo lineup administrator introduced suggestiveness into the lineup procedure that had the affect of implying the identity of law enforcement’s known suspect. Estimator variables, on the other hand, are those variables that are not in control of the criminal justice system and have more to do with the the conditions or characteristics of the crime scene, witness and perpetrator, i.e., the viewing conditions during the crime, whether the perpetrator had a weapon, or whether a co-witness contaminated the eyewitness’ memory. Social scientists have studied these variables and measured how their existence in a criminal case may affect the reliability of an eyewitness identification.
For New Jersey, the 2011 decision in State v. Henderson revealed the need for these instructions in assessing the reliability eyewitness IDs. The Henderson litigation presented the New Jersey Supreme Court with complicated scientific arguments about memory and human behavior, and the Court felt ill equipped to decide the case without a broader record on which to do so. So the Court took the unprecedented step to remand the case back to a special judge to hear three weeks of evidence from the nation’s most prominent social scientists and make scientific findings of fact about the existence of the variables and how they affect the reliability of eyewitness evidence. The result of this endeavor was a comprehensive opinion by the Court and a charge to New Jersey’s jury instruction committee to come up with enhanced instructions that would best explain these scientific concepts to jurors.
The Committee’s work is split into three separate instructions, each giving identification assessment precautions pending the location of where the ID was collected: in court only; in court and out of court; and out of court only. Each instruction lists all of the variables and provides guidance on how jurors should consider that variable’s affect on the case. The judge need not read the entire list of instructions before the presentation of each witness ID. Rather, must only provide the instruction as to variables that apply to the case. Opponents of making these instructions mandatory have suggested they would take up too much judicial time to recite, but the New Jersey Supreme Court obviously did not find this argument persuasive.
Based on a suggestion from the Florida Innocence Commission, the Florida Supreme Court Committee on Standard Jury Instructions also came up with their own version of an eyewitness identification jury instruction. IPF executive director, Seth Miller, filed a public comment outlining major deficiencies with the proposed instruction and proposing the New Jersey instruction as a model. We are awaiting action by the Florida Supreme Court.
Read the full article on the N.J. Supreme Court’s imposing sweeping changes in crime witness testimony.
How do you think such instructions would help jurors in Florida better assess the reliability of eyewitness evidence?