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After the landmark ruling that was issued last year, the New Jersey Supreme Court finally issued new eyewitness identification jury instructions which will likely reduce wrongful convictions based on eyewitness mis-identification.  The new instructions, which will take effect on September 4, 2012, are the response to the problems identified by the State Supreme Court last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony was outdated and should be revised.  These instructions are based on more than 30 years of scientific research and are designed to resolve the “troubling lack of reliability in eyewitness identifications.”

Judges are now required to give jurors these instructions to help them better evaluate eyewitness identification evidence in criminal trials.  Essentially, these instructions caution jurors that eyewitness testimony must be scrutinized carefully.  This is because “human memory is not foolproof” and “research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened.”

For example, in cases involving cross-racial identifications, judges are to direct jurors to be cautious because “research has shown that people may have greater difficulty in accurately identifying members of a different race.”

Another instruction to be given to jurors is that they are to consider the time elapsed between the commission of the crime and the identification including making sure that the prior description of the perpetrator matches the eyewitness identification.  Also, jurors should question the confidence and accuracy of the eyewitness identification because “although some research has found that highly confident witnesses are more likely to make accurate identifications, eyewitness confidence is generally an unreliable indicator of accuracy.”

Lastly, jurors are to be directed to question the reliability of the eyewitness identification regarding the eyewitness’s opportunity to view the perpetrator of the crime and their degree of attention to the crime.  Factors like stress level while viewing the crime, duration of time the witness witnessed the crime, if there was a weapon present, the distance between eyewitness and the perpetrator/crime scene, the lighting, if the witness was intoxicated during the viewing of the crime, or if the perpetrator was using a disguise during the crime – all have a considerable impact on the accuracy of the eyewitness identification.

The ultimate issue of whether to trust eyewitness testimony is for a jury to decide.  These jury instructions are designed to assist jurors in the evaluation of whether the eyewitness identification is reliable or not.  By giving jurors these instructions, the criminal justice system is ensuring that jurors now are educated about the most recent available research on what makes eyewitness identification more or less reliable.