Badges - Mistaken ID & Eyewitness Testimony

From: Charles Rahn <c.t.rahn@xxxxxxxx>
To: Badges 1Badge <badges@xxxxxxxxxxxxx>
Date: Thu, 25 Aug 2011 16:53:31 -0400

34 Years Later, U.S. Supreme Court Will Revisit Eyewitness IDs: In New Jersey,
rules changed on witness ID.

More than 75,000 eyewitnesses identify suspects in criminal cases every Year.
Mistaken identifications lead to wrongful comvictions. Of the first 250 DNA
exonerations, 190 involved eyewitnesses who were wrong, as documented in
“Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor
at the University of Virginia. In November, the U.S. Supreme Court will again
address the question of what the Constitution has to say about the use of
eyewitness evidence. 1977, in the case of Manson v. Brathwaite, was the last
time the court thoroughly addressed this issue. Since then, the scientific
findings in understanding human memory have been transformed. More than 2,000
studies on the topic have been published in professional journals in the past
30 years, according to a New York Times article of August 22 by Adam Liptak
which may be found at:

http://www.nytimes.com/2011/08/23/us/23bar.html?_r=1&scp=1&sq=Perry%20v.%20New%20Hampshire&st=cse

The pending U.S. Supreme Court case is Perry v. New Hampshire No.: 10-8974.
Professional investigators should also be aware of a New Jersey Supreme Court
report by special master Geoffrey Gaulkin in the matter of New Jersey v.
Henderson. In referring to the report, attorney Barry C. Scheck, a director of
the Innocence Project at the Benjamin N. Cardozo School of Law, said that what
is needed in this area is a new “legal architecture,” one in which judges play
an authentic gatekeeping role. He indicated that the special master's report
suggested that memory should be treated “as a form of trace evidence: a
fragment collected at the scene of a crime, like a fingerprint or blood smear,
whose integrity and reliability need to be monitored and assessed from the
point of its recovery to its ultimate presentation at trial.”

The new rules in New Jersey come at a time of increased scrutiny of the
eyewitness identification issue among lawyers, law enforcement officers and the
scientific community. The opinion of New Jersey Chief Justice Stuart Rabner
noted that task forces have been formed to recommend or put into effect new
procedures to improve reliability. The unanimous decision listed more than a
dozen factors that judges should consider in evaluating the reliability of a
witness’s identification, including "whether a weapon was visible during a
crime of short duration, the amount of time the witness had to observe the
event, how close the witness was to the suspect, whether the witness was under
the influence of alcohol or drugs, whether the witness was identifying someone
of a different race and the length of time that had elapsed between the crime
and the identification" according to another NY Times article of August 24,
2011 by Benjamin Weiser.

http://www.nytimes.com/2011/08/25/nyregion/in-new-jersey-rules-changed-on-witness-ids.html?_r=1&ref=todayspaper

Now in New Jersey, in cases where such evidence is in dispute and is admittted,
the judge must give detailed explanations to jurors, even in the middle of a
trial, on the influences that might increase risk of misidentification. Prior
to Justice Rabner's opinion, judges held far more limited hearings on such
matters. Although the decision applies only in New Jersey, it will impact
nationally as New Jersey has already been a leader in establishing guidelines
on how judges should handle such testimony.

Badges - Mistaken ID & Eyewitness Testimony

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