In August of 2011, the New Jersey Supreme Court created significant safeguards to protect defendants in criminal trials from wrongful convictions resulting from erroneous eyewitness identification. Pennsylvania may well follow suit, though at a much slower pace. Several studies have shown that an eyewitness’s memory can be dramatically influenced by myriad factors, causing eyewitness error to be the leading cause of wrongful convictions throughout the country. In fact, out of the first 250 cases of DNA exoneration, 190 of the bad convictions were due to eyewitness error.
Under the new rules, when the defense attorney presents evidence that the identification was somehow influenced by other factors, the presiding judge will hold a hearing to discuss the issue with both parties. At this point, two things can happen. If the evidence is substantial enough, then the witness’s testimony and subsequent identification will be suppressed entirely. However, if the evidence is not compelling enough, the judge must instruct the jury of the possibility of misidentification and how it can occur. In his 134-page opinion, Chief Justice Stuart J. Rabner noted that since the threshold for outright suppression is still high, the vast majority of eyewitness identifications will be admitted, albeit frequently with words of warning from the judge.
In its decision, the New Jersey Supreme Court listed over a dozen factors that could impact a witness’s recollection of an event. Among them are:
- The presence of a weapon
- How long the witness observed the event
- The proximity of the witness to the suspect
- Whether or not the witness was under the influence of alcohol and drugs
- The race of the suspect differing from the race of the witness
- The length of time between the crime and the identification of the subject
- Police behavior or remarks
- Stress the witness may have been under
Historically, the New Jersey Supreme Court has been considered a leader in the field of criminal law. That is why many lawyers and scholars believe that this system will eventually be adopted across the country at both the state and federal levels. Barry C. Scheck, a director of the Innocence Project at the Benjamin N. Cardozo School of Law, filed an amicus curiae brief in support of the new system. He believes that “It’s going to affect the way every state and federal court in the United States assesses eyewitness identification evidence, and what those courts tell juries about the factors that can increase the risk of misidentification.” Time will tell whether or not this landmark decision works its way across the country, and perhaps eventually into neighboring Pennsylvania.
Contact Fairlie & Lippy to speak to a Pennsylvania Criminal Lawyer to discuss your case and the phases of the Criminal Court Process.