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New Jersey Supreme Court Warns Eyewitness Identification Evidence Unreliable, Orders New Rules

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TRENTON, N.J. — New Jersey's highest court ordered changes Wednesday to the way eyewitness identifications are used, saying the current system is not reliable enough, fails to deter police misconduct and overstates jurors' ability to evaluate the evidence.

The case is expected to influence the way eyewitness identification of suspects are handled, and not just in New Jersey.

The ruling is being closely watched because New Jersey has long been at the forefront in identification standards. In 2001, the state became the first to establish police guidelines for lineups designed to prevent mistaken suspect identifications. Other states followed suit.

"There is no question this case will have an effect on every state and federal court in the country," said Barry Scheck, co-founder of the Innocence Project, a New York legal center specializing in overturning wrongful convictions.

Because New Jersey has already updated guidelines for police on how to conduct lineups and other methods for witness identifications, the ruling will have a greater impact in New Jersey courtrooms.

Just as important as the ruling, Scheck said, was a yearlong review ordered by the state Supreme Court of procedures used by police when they ask witnesses to identify suspects.

Scheck, who presented testimony during the hearings that called for stricter ID standards, called the review the "most extensive examination of social science in the area of eyewitness identification that has been done, using the leading experts around on witness IDs and psychology."

The review found that a test, created in 1977 and used by courts in 48 states and the federal system, to assess the reliability of witness identification is flawed and inadequate – a finding the court appeared to cement in its ruling Wednesday.

"A vast body of scientific research about human memory has emerged," wrote Supreme Court Chief Justice Stuart Rabner in a unanimous ruling, which encompassed two cases. "That body of work casts doubt on some commonly held views relating to memory."

Nationally, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75 percent of the 273 convictions overturned through DNA testing, according to the Innocence Project, and three of the five exoneration cases in New Jersey involved misidentification.

Currently, a defendant has the burden of challenging an eyewitness identification. That won't change. However, the ruling will make it easier to get a hearing before their trial to challenges the identification.

The ruling will also require judges to give more detailed instructions to juries about the potential flaws with eyewitness identifications – in some cases before a witness takes the stand so that jurors can listen more critically.

"Courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications, and that juries must receive thorough instructions tailored to the facts of the case to be able to evaluate the identification evidence they hear," Rabner wrote.

Prosecutors pointed out that the ruling does not change the legal standard used to decide whether a witness identification should be thrown out and will only affect cases going forward.

"The court's decision to make its ruling purely prospective signals that it does not believe that the current legal framework was unreliable to the point that convictions that have been obtained must be reviewed under the new standard," said Paul Loriquet, a spokesman for the Attorney General's Office, which argued that the standards in place in New Jersey were adequate.

Because New Jersey already had guidelines in place for police on how to conduct eyewitness identifications and line-ups, the ruling will have a more practical effect in changing the courtroom procedure for challenging those IDs.

New Jersey uses what's called a sequential blind lineup, a widely praised technique designed to reduce mistakes by witnesses when trying to identify suspects. In sequential blind lineups, mug shots are shown one at a time. Detectives displaying the photos don't know who the suspect is, which means they can't intentionally or accidentally tip off witnesses.

Some other states and cities – Dallas, Boston, Minneapolis and Denver, along with North Carolina – use sequential blind lineups or some variation. However, most police departments use a so-called six-pack or other traditional method where a witness views several people or photographs at one time.

Some of the new science presented during the hearings showed that witnesses are likely to stay committed to the first mug shot they pick – even if it's wrong. It also showed how identifying witnesses who identify someone from a different race increases the chance of misidentification and how the presence of a weapon can distract witnesses from remembering details about a perpetrator.

In one case, an eyewitness lineup that included Larry Henderson of Camden led to his conviction in 2004 on manslaughter charges. Henderson's attorney, public defender Joseph Krakora, argued he was misidentified after police did not follow proper identification guidelines.

Krakora praised the court's ruling Wednesday, saying it would "go a long way toward eliminating wrongful convictions based on mistaken identity."

Henderson has already been let out on parole, but his case will get a new hearing and he'll get a chance to clear his name.

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