In the wake of the NJ Supreme Court’s holding in State v. Henderson, which was issued last year, the New Jersey Supreme Court has announced rule changes and new jury charges that will go into effect on September 4, 2012, regarding how eyewitness identifications may be used in court. In State v. Henderson, the Supreme Court mandated that the standards used for evaluating eyewitness identifications must be revised in light of the number of erroneous convictions based on misidentification.
Under the new rules, police would be required to keep a detailed record of what occurred during any identification process, which would have to include the following information: the place of the identification, the dialogue between the witness and the officer, any identification or attempted identification that occurred, statement by the witness of his level of confidence in the identification, information about others with whom the witness spoke at any time regarding the identification, a photograph of any live lineup, a record of the photo lineup array or book used, and the identity of anyone present during the process. Any record would have to be prepared contemporaneously with the identification, or, if that is not possible, “as soon as practicable and without undue delay.”
The new jury charges with respect to identification would inform jurors that “human memory is not foolproof” and that research has shown that human memory “is not like a video recording that a witness need only replay to remember what happened.” The new jury charges would also advise jurors that certain factors can render an eyewitness identification less reliable, including the stress the eyewitness was under, the event’s duration, distance, lighting, cross-racial identification, and focus on a weapon.
The State of New Jersey has become a leader in catching court rules and procedures up with science as it relates to eyewitness identification. Scientific studies have repeatedly shown that memory is very fallible, and that identifications under stressful circumstances are often wrong. However, juries often give great weight to eyewitness identifications. Therefore, it is critical that juries be advised as to the dangers of misidentification.