`Daubert' hearings for eyewitness ID testimony endorsed by NJ Law Journal Editorial Bd.

Clearing Blurred Vision

New Jersey Law Journal Editorial Board

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.

NJ: Eye-witness ID Special Master Urges Stricter Scrutiny of Testimony

 Image: Geoffrey Gaulkin
Last year the New Jersey Supreme Court, in State v. Henderson, remanded the eye-witness 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 NJ 223 (1988) the court had held 

• [A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a “very substantial likelihood of irreparable misidentification.”

The test was an open door for flimsy testimony.  The New Jersey Supreme Court was in the vanguard of courts who paid heightened attention to the need to assure that scientific expert testimony was based on "sound methods", but as Michael Risinger showed, the post-Daubert stiffening of judicial attitudes to scientific evidence stopped at the prosecutor's door.  


The test’s high barrier (proof of undue suggestiveness by police) left the door open wide for unreliable testimony testimony.  In recent years the problem has been highlighted by The Innocence Project.  Their data shows that as of May 13, 2010, 254 wrongfully convicted persons had been exculpated by DNA evidence; 75% of those convictions involved erroneous eyewitness identifications. [ See Innocence Project, Facts on Post-Conviction DNA  Exonerations, www.innocenceproject.org/Content/Facts_on_
PostConviction_DNA_Exonerations.php]


Persistence by New Jersey's Public Defender and its allies has paid off.  The Supreme Court appointed retired Appellate Division judge Geoffrey Gaulkin as special master.   He conducted a seminar, in which the Public Defender, aided by the Innocence Project and the Association of Criminal Defense Lawyers, and Prof. Risinger as amicus,  presented social science evidence about the weaknesses of eyewitness identification evidence.


Gaulkin's report to the Supreme Court systematically reviews the scientific evidence, rejects the prosecutor's stand-pat approach, and urges the high court to adopt a key remedy - - shifting the burden to the party offering the evidence:

First, it would be both appropriate and useful for the courts to handle eyewitness identifications in the same manner they handle physical trace evidence and scientific evidence, by placing 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.

Civil and criminal standards are brought into parity by Gaulkin's approach because the focus is on reliability - without the barrier of showing impermissible suggestiveness.  We now await the New Jersey Supreme Court's response.


The Gaulkin report is HERE.