Today’s New York Times gives us the latest chapter in how New Jersey has overcome law enforcement’s usual resistance to science. In “New Jersey Court Issues Guidance for Juries About Reliability of Eyewitnesses,” we learn that the New Jersey Supreme Court has issued instructions for trial judges to give to jurors in cases in which eyewitness testimony plays a role. These new instructions, which take effect on Sept. 4, reflect much of the best of what science has long told us about the fallibility of eyewitness identification. At least in New Jersey, science has broken through law enforcement resistance. For example, the Times quotes from the instructions on one of the most common misunderstandings jurors have of eyewitness testimony.
“Human memory is not foolproof,” the instructions say. “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 instructions also cover the difficulties of cross-racial identification, the time elapsed between an incident witnessed and the identification procedure, and how police officer behavior during the procedure might influence the outcome.
The new instruction follow the New Jersey Supreme Court landmark decision last year in the Henderson case, in which the court declared that it would treat as mandatory the state attorney general’s guidelines for eyewitness identification issued in 2001 .
Law professor Brandon Garrett of the University of Virginia, author of the excellent and influential book “Convicting the Innocent,” points out in the Times article that the instructions are “far from perfect,” but also calls them “a remarkable road map for how you explain eyewitness memory to jurors.” Professor Garrett is right on both counts, but I would emphasize the second one. These new instructions solidify New Jersey’s place at the forefront of the effort to reform eyewitness identification procedures.
Chapter 7 of Failed Evidence contains the complete story of how New Jersey broke through the usual law enforcement resistance to science. You can read it when the book is published by NYU Press on September 12, 2012.