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Eyewitness Identification in New Jersey


NJ Misidentification and Wrongful Conviction Lawyer

Eyewitness identifications often play an extremely important role in criminal trials, but suggestive police conduct during photo array and lineup procedures can sometimes taint the results, and factors such as stress, viewing conditions, and memory decay can also decrease the reliability of eyewitness evidence.

In New Jersey, a variety of safeguards have been created to minimize the likelihood of misidentifications and wrongful convictions. Unfortunately, however, mistakes can still occur. When this happens, defendants need to have an experienced criminal defense attorney who will protect their rights and raise all available challenges to the eyewitness identification evidence.

At The Law Offices of Anthony N. Palumbo, we know how to protect our clients from unreliable eyewitness identifications. Call us today at 908-272-9700 to schedule a free consultation and learn how we can help in your case.

Reliability of Eyewitness Identifications

The reliability of an eyewitness identification can be affected by many different circumstances, ranging from the witness’ poor vision to inappropriate police coaching during the identification process. Courts divide these reliability factors into two categories: system variables, which include police conduct and identification procedures, and estimator variables, which relate to the witness’ ability to accurately perceive and identify the suspect.

System variables include the following:

  • Whether the identification procedure was performed double-blind (meaning that it was conducted by someone other than the primary investigator in the case) in order to avoid inadvertent verbal cues or body language that could affect the witness’ identification
  • Whether the witness was provided with appropriate pre-identification instructions
  • Whether inherently suggestive one-on-one showup procedures were limited to identifications made on or near the scene and within two hours after the event occurred
  • Whether the photo array or lineup contained a sufficient number of fillers (i.e., nonsuspects) and whether the fillers were chosen so as not to make the suspect stand out
  • Whether the witness viewed any suspects or fillers more than once during multiple arrays or lineups, which could skew the witness’ identification
  • Whether the witness received any feedback from law enforcement about the suspect, including information received by the witness before the identification as well as post-identification feedback such as signaling to the witness that they correctly identified the suspect
  • Whether the witness was exposed to any opinions, descriptions, photographs, news accounts, or other information that may have affected the independence of their identification
  • Whether the administrator recorded the witness’ statement of confidence before the possibility of any confirmatory feedback
  • Whether the witness initially made no choice or chose a different suspect or filler

System variables are addressed in the New Jersey Attorney General’s guidelines for eyewitness identification procedures, which were issued in 2001 in an effort to improve the accuracy of identifications and deter suggestive police practices. The guidelines include various suggestions and recommendations regarding double-blind administration, lineup composition and the use of fillers, and pre-identification instructions.

While system variables focus on police conduct and the identification process, estimator variables relate to the witness’ ability to accurately perceive and identify a suspect. Estimator variables include the following:

• Whether high levels of stress may have diminished the witness’ ability to recall the event or make an accurate identification

• Whether the witness’ attention may have been drawn away from the perpetrator due to the presence of a visible weapon

• The length of time the witness had to observe the perpetrator

• Circumstances affecting eyesight and perception, such as lighting conditions and the distance between the witness and the perpetrator

• Whether the witness’ attention and perception were affected by alcohol, drugs, or medical conditions• Whether the perpetrator was wearing a disguise

• Whether memory decay may have affected the witness between the time of the crime and the time of the identification

• Whether the case involved a cross-racial identification, which can decrease reliability

• Whether the witness provided an accurate description of the criminal prior to making the identification

• The witness’ confidence or lack of confidence in the identification

Challenging Eyewitness Identification Evidence

Defendants who believe that they’ve been wrongfully identified can challenge an eyewitness identification and seek to have the evidence suppressed. In order to raise such a challenge, the defendant must first show that feedback or suggestiveness caused by a system variable could have affected the reliability of the identification. This generally requires evidence of suggestive police conduct, but feedback from non-police actors such as other witnesses may suffice in some cases. Once this initial showing is made, a pretrial hearing is held and defendant may raise other arguments concerning the effects of estimator variables on the witness’ reliability.

The ultimate burden of proof rests on the defendant to prove that there was a very substantial likelihood of misidentification. Both system and estimator variables must be considered, and if the judge agrees with the defendant that the identification was substantially unreliable, then the evidence cannot be presented at trial. If the judge agrees with the prosecution, on the other hand, and finds that enough variables support the witness’ reliability, then the evidence is deemed admissible and the jury becomes responsible for evaluating its accuracy and reliability.

Identification evidence may also be found inadmissible if the police fail to comply with the recordation requirements in New Jersey Court Rule 3:11, which specifies how identifications must be recorded and what information must be preserved, such as pictures of the lineup, lists of witnesses, and copies of the witness’ statement.

Jury Instructions

If an eyewitness identification is deemed admissible, it becomes the jury’s responsibility to assess the evidence and determine whether the identification was accurate and reliable. Enhanced jury instructions must be provided, however, to help the jurors understand how identification results can be affected by system and estimator variables, and step-by-step instructions of this sort were released by the New Jersey Supreme Court in 2012. If the judge fails to provide adequate jury instructions on the issue of identification, the error may constitute grounds for an appeal or for post-conviction relief.