Editorial from the New Jersey Legal Journal
August 2001

How Accurate Is Eyewitness Testimony?

    We were pleased to read that Attorney General John Farmer Jr. has

implemented guidelines that will make eyewitness identification more

reliable. In 1996, the U.S. Department of Justice released a report titled

"Convicted by Juries, Exonerated by Science." The report contains case

studies of 28 individuals who were released from prison after being

convicted of sexual assaults and murders that post-conviction DNA

testing proved they could not have committed. In other words, they were

factually innocent of the crimes for which they were convicted.

Attorney General Farmer's "Directive to New Jersey Law Enforcement

Personnel" states that the new guidelines incorporate more than 20

years of research on memory and interview techniques. The directive

states that New Jersey will become the first state in the nation to

officially adopt the recommendations issued by the U.S. Department of

Justice in its Eyewitness Evidence Guidelines.

    In State v. Cromedy, the New Jersey Supreme Court took a step in the

same direction. Building on a recommendation of the Supreme Court

Task Force on Minority Concerns, the Court ruled that despite a lack of

"substantial agreement in the scientific community that cross racial

recognition impairment of eyewitnesses is significant enough to warrant

a special jury instruction," juries should be given a special instruction to

have concern when an eyewitness's cross-racial identification is not

corroborated.

    All too often we have taken for granted the value of eyewitness

testimony, believing that what we see carries the weight of truth. As

strange as it may seem, eyewitness testimony is not as unassailable as

we might wish. Both history and science have demonstrated this. "The

vagaries of eyewitness identification are well-known; the annals of

criminal law are rife with instances of mistaken identification." United

States v. Wade, 388 U.S. 218, 228 (1967). Attorney General Farmer

explained why concern is needed:

"It is axiomatic that eyewitness identification evidence is often crucial in

identifying perpetrators and exonerating the innocent. However, recent

cases, in which DNA evidence has been utilized to exonerate individuals

convicted almost exclusively on the basis of eyewitness identifications,

demonstrate that this evidence is not fool-proof. In one 1998 study of

DNA exoneration cases, ninety percent of the cases analyzed involved

one or more mistaken eyewitness identifications."

    Researchers have conducted experiments in which they have shown

photographs to "test witnesses" showing some sort of "effect," such as

oranges sprawled on a supermarket floor. The researchers later showed

the same witnesses photographs of the most probable cause of that

effect, such as someone reaching for an orange from the bottom of a

stack. The researchers then asked the subjects whether they had ever

seen before the photograph of the person reaching into the stack of

oranges.

    A statistically significant number said that they had. The witnesses

simply filled in the gaps of missing scenes by saying that they had

previously seen pictures that they had never actually seen pictures

that might have been expected to have been there in the first place. They

inferred correctly, but their underlying memories were illusions. Such

experiments demonstrate that normal memory can be tricked in the way

that optical illusions (such as trompe l'oeil, the ancient art of illusion)

trick, or manipulate, normal visual perception.

    To minimize such illusions, the attorney general's directive highlights two

procedural recommendations contained in the guidelines that are

particularly significant and will represent the primary area of change for

most law enforcement agencies.

    The first advises agencies to use, whenever practical, someone other

than the primary investigator assigned to a case to conduct both photo

and live lineup identifications. The individual conducting the photo or live

lineup identification should not know the identity of the actual suspect.

This provision of the guidelines is not intended to question the expertise,

integrity or dedication of primary investigators working their cases.

Rather, it acknowledges years of research which concludes that even

when using precautions to avoid any inadvertent body signals or cues to

witnesses, these gestures do occur when the identity of the actual

suspect is known to the individual conducting the identification

procedure. This provision of the guidelines eliminates unintentional verbal

and body cues that may adversely impact a witness's ability to make a

reliable identification.

    The second important guideline recommends that, when possible,

"sequential lineups" should be used for both photo and live lineup

identifications. Sequential lineups are conducted by displaying one

photo or one person at a time to the witness. Scientific studies have

also proven that witnesses have a tendency to compare one member of

a lineup to another, making relative judgments about which individual

looks most like the perpetrator. This relative judgment process explains

why witnesses sometimes mistakenly pick someone out of a lineup

when the actual perpetrator is not even present. Showing a witness one

photo or one person at a time, rather than simultaneously, permits the

witness to make an identification based on each person's appearance

before viewing another photo or lineup member. Scientific data have

illustrated that this method produces a lower rate of mistaken

identifications. If use of this method is not possible in a given case or

department, the guidelines also provide recommendations for conducting

simultaneous photo and live lineup identifications.

In Wade hearings, we encourage courts to consider whether an

identification that did not follow these guidelines is sufficiently reliable to

be admitted into evidence.

    The office of public prosecutor is one that must be administered with

courage and independence.

    In State v. Bogen, 13 N.J. 137 (N.J. 1953), Justice William Brennan Jr.,

when sitting on the New Jersey Supreme Court, described the function

thus: "The primary duty of a lawyer engaged in public prosecution is not

to convict, but to see that justice is done." The canon epitomizes

Justice George Sutherland's classic statement in Berger v. United

States, 295 U.S. 78, 88 (1935):

"The . . . (prosecuting) Attorney is the representative not of an ordinary

party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it shall win a

case, but that justice shall be done."

    In his relatively brief tenure and during a most complex period of

transition, Attorney General Farmer has displayed courage and

independence to see that justice is done.

Date Received: August 10, 2001