Clearing Blurred Vision
July 2, 2010
Last year, the state Supreme Court remanded State v. Henderson , an eyewitness identification case, "for a hearing to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence." In State v. Madison , 109 N.J. 223 (1988), the Court had held that courts must decide (1) whether the procedure was impermissibly suggestive; and (2) whether the procedure resulted in a "very substantial likelihood of irreparable misidentification."
Madison left the door open wide for unreliable testimony. Social science research demonstrates that one-third of all positive identifications are wrong. And as reported by the Innocence Project, 75 percent of the persons exculpated by DNA evidence had been convicted on the basis of erroneous eyewitness identifications. The problem is not prosecutorial misconduct but the inherent frailties of memory demonstrated in lineups, show-ups and in-court identifications. Social scientists have identified patterns of failure due to factors including post-identification reinforcing feedback, eyewitness stress, weapon focus, distance effects, lighting, age of observer, and cross-race identification failures.
Persistence by New Jersey's Office of the Public Defender and its allies has paid off. The Supreme Court appointed retired Appellate Division Judge Geoffrey Gaulkin as special master. His report to the Court systematically reviews the scientific evidence, the law, and practice here and in other states. He rejects the state's standpat approach and urges the Court to adopt a key remedy. He would place "at least an initial burden on the prosecution to produce, at a pretrial hearing, evidence of the reliability of the evidence. Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting."
Judge Gaulkin's approach brings civil and criminal standards into parity because the focus is on reliability, without the barrier of showing impermissible suggestiveness. This focus — away from fault and toward objective assessment of reliability by the judge as gatekeeper — is a wise one. We hope our Supreme Court embraces Gaulkin's approach.
This editorial was published in the July 2, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
Madison left the door open wide for unreliable testimony. Social science research demonstrates that one-third of all positive identifications are wrong. And as reported by the Innocence Project, 75 percent of the persons exculpated by DNA evidence had been convicted on the basis of erroneous eyewitness identifications. The problem is not prosecutorial misconduct but the inherent frailties of memory demonstrated in lineups, show-ups and in-court identifications. Social scientists have identified patterns of failure due to factors including post-identification reinforcing feedback, eyewitness stress, weapon focus, distance effects, lighting, age of observer, and cross-race identification failures.
Persistence by New Jersey's Office of the Public Defender and its allies has paid off. The Supreme Court appointed retired Appellate Division Judge Geoffrey Gaulkin as special master. His report to the Court systematically reviews the scientific evidence, the law, and practice here and in other states. He rejects the state's standpat approach and urges the Court to adopt a key remedy. He would place "at least an initial burden on the prosecution to produce, at a pretrial hearing, evidence of the reliability of the evidence. Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting."
Judge Gaulkin's approach brings civil and criminal standards into parity because the focus is on reliability, without the barrier of showing impermissible suggestiveness. This focus — away from fault and toward objective assessment of reliability by the judge as gatekeeper — is a wise one. We hope our Supreme Court embraces Gaulkin's approach.
This editorial was published in the July 2, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
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