New eyewitness rules praised by criminal defense attorneys

Courts often make changes in the ways evidence may be used in trying a case. But a change as monumental as one recently made by the New Jersey Supreme Court is rare and will directly affect criminal defense. The changes started last year when the Court ruled that eyewitness testimony is unreliable. Now the Court has gone even further, requiring police to keep careful records of how they obtain eyewitness testimony and requiring more explicit instructions about how members of a jury may consider it at trial.

The changes came as a result of two cases the Court recently heard, both of which were convictions based on eyewitness testimony. In one case, a man convicted of manslaughter claimed police influenced a witness to identify him by positioning photos in a way that caused him to be selected as the culprit. In the second case, an Army captain had been convicted of attempted murder based upon the testimony of the wife of the defendant’s former boyfriend, after he suggested a sketch the victim drew matched the defendant. Both of these convictions were reversed by the Supreme Court, leading to the new rules.

Under the new rules, police are directed, but not required, to record or write down any discussions with eyewitnesses for better recollection at trial, which could be months or even years later. The judge then has the discretion to allow the testimony based upon the officers’ accounts. And jurors will be given instructions, including reminders that human memory is not foolproof and isn’t like playing back a video recording.

Criminal defense attorneys are encouraged by the new rules. After three decades of arguing for changes in the admissibility of eyewitness testimony, they believe that they will be instrumental in keeping innocent people out of court and out of jail. Prosecutors and law enforcement are predictably less enthusiastic. They believe that it may thwart efforts to get guilty parties in jail and make the court process longer as parties argue over whether and how eyewitness testimony should be admitted. It will be interesting to follow the new body of law created under the New Jersey rules to see if the restrictions on eyewitness testimony make a difference in acquittals of the wrongly accused.

Source: NJ.com, “N.J. Supreme Court imposing sweeping changes in crime witness testimony,” Maryann Spoto, July 23, 2012