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Courts begin to re-examine the use of eyewitness testimony

We have previously written that some tools of the criminal justice system - ones which have long defined standards of evidence - are now being challenged, and sometimes discredited. Chief among these is the use and reliability of eyewitness testimony.

Numerous studies over the past several years have concluded that human memory is incredibly fallible, and that a witness's recollection of an event can be inaccurately skewed by a number of factors. Too much reliance on inaccurate eyewitness testimony has been responsible for countless wrongful convictions for crimes such as rape, robbery and even murder.

Unfortunately, the problems inherent in eyewitness testimony are evidenced in courtrooms across Wisconsin and the entire country. Thankfully, some states are reconsidering the way eyewitness testimony is used in court, as well as how influential such testimony should be.

Currently, the State of New Jersey is blazing a trail when it comes to reforming the use of eyewitness identification in court. Starting in September, judges will be required to read a special set of instructions to jurors before deliberations in a case can begin. These instructions will inform jurors that "Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex."

Judges must also disclose that the accuracy of a witness's memory can be affected by a number of factors, including:

  • Stress levels
  • Visual distance from the alleged crime
  • Poor lighting
  • The amount of time that has elapsed between the alleged crime and the witness's identification of the suspects
  • The manner and order in which witnesses are shown photos of suspects or see them in a line-up

Even differences in race can play a subconscious role. When the new instructions are instituted, jurors will be warned that "research has shown that people may have greater difficulty in accurately identifying members of a different race."

The goal here is not to completely discredit eyewitness testimony, but rather to help jurors assign the appropriate level of importance to it in each particular case. Legal experts will be watching what effect these new changes will have on the legal system in New Jersey. If successful, we might someday see similar reforms instituted here in Wisconsin courts.

Source: New York Times, "New Jersey Court Issues Guidance for Juries About Reliability of Eyewitnesses," Benjamin Weiser, July 19, 2012

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