News

NJ Judge Recommends Change to Police Lineups

Published June 23, 2010

Monday, June 21, 2010

TRENTON, N.J. (AP) — A New Jersey judge has found that a test used by courts in 48 states and the federal system to assess the reliability of witness identification is flawed and inadequate — a finding that could alter the way juries hear about evidence in court.

The findings were released Monday as part of a state Supreme Court-ordered inquiry to determine how well New Jersey’s standards are working given new scientific studies.

Retired state Appellate Division Judge Geoffrey Gaulkin, who was appointed to oversee the inquiry, said the state should have the burden of showing that a witness identification is reliable. Currently, a defendant has the burden of proving there was undue suggestion during the identification process.

Gualkin also recommended witness identifications be scrutinized in the same way physical evidence is and suggested that could be done through pretrial hearings.

“Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting,” Gaulkin wrote.

Finally, he said jurors should be instructed on the scientific reliability of witness identifications.

Gaulkin was tasked with trying to determine how valid the state’s current standards are concerning the admissibility of witness identification. Several hearings were held last fall with expert testimony, as well as oral arguments from defense attorneys, prosecutors and others.

The full New Jersey Supreme Court will consider Gaulkin’s recommendation and decide whether and how new guidelines are crafted.

Barry Scheck, co-founder of the Innocence Project, a New York legal center specializing in overturning wrongful convictions, said Gaulkin’s report and the Supreme Court’s ultimate ruling is expected to influence more than New Jersey courts because the yearlong inquiry was so comprehensive.

“Whatever they do is going to be watched by state courts across the country, if not the U.S. Supreme Court, not to mention federal judges everywhere,” he said.

Scheck, one of several attorneys for O.J. Simpson during his 1995 murder trial, presented testimony during the hearings that called for stricter standards — many of which Gaulkin said he supported.

Nationally, more than two-thirds of the 254 DNA exonerees who have been released since 1989 were sent to prison based on witness misidentification, according to the Innocence Project. It’s the most common element in a wrongful conviction, the center said.

Three of the five exoneration cases in New Jersey involved misidentification, according to the Innocence Project.

New Jersey has long been at the forefront in identification standards. In 2001, the state became the first to establish lineup protocol guidelines designed to prevent mistaken suspect identifications. Other states followed suit.

However, Gaulkin said there was no evidence that the guidelines were working adequately.

“Nothing in the record suggests that New Jersey has thereby solved, or even substantially alleviated, the problem of mistaken identifications,” the judge said.

Among the guidelines’ recommendations were that police use a sequential blind lineup, a widely praised technique designed to reduce mistakes by witnesses when trying to identify suspects.

In sequential blind lineups, mug shots are shown one at a time. Detectives displaying the photos don’t know who the suspect is, which means they can’t intentionally or accidentally tip off witnesses.

Dallas, Boston, Minneapolis and Denver, along with North Carolina, use sequential blind lineups or some variation. However, most police departments use a so-called six-pack or other traditional method where a witness views several people or photographs at one time.

Some of the new science presented during the hearings shows that witnesses are likely to stay committed to the first mug shot they pick — even if it’s wrong. It also showed how identifying someone from a different race than the witness increases the chance of misidentification and how the presence of a weapon can distract witnesses from remembering details about a perpetrator.

“Eyewitness memory is not like replaying a videotape,” Scheck said. “Human memory is malleable. Just the way physical evidence can be contaminated or collected improperly, so can eyewitness testimony be contaminated or collected in a way that changes its meaning.”

While DNA evidence is increasingly used to exonerate prisoners, defense attorneys say the way to stem wrongful convictions is to first prevent misidentifying suspects.

“Disturbing statistics from DNA exonerations have confirmed what many social science researchers have long suspected: Eyewitness misidentification is the single greatest source of wrongful convictions and responsible for more wrongful convictions than all other causes combined,” Assistant Public Defender Joseph Krakora argued last September during one hearing.

The inquiry was ordered following an appeal by Larry Henderson, a Camden man who claims police influenced a witness to identify him.

He was convicted in 2004 of reckless manslaughter, aggravated assault and weapons charges in connection to the death of a Camden man.

Although the inquiry came too late for him — Henderson has already been released on parole — defense attorneys said the case is crucial to how future suspects are identified.

Krakora argued that unless proven reliable, witness identifications should be thrown out. Prosecutors said that while guidelines should be adhered to, a deviation from them should not automatically mean that a witness identification can’t be used in court.

Gaulkin suggested that juries be told of the reasons for the potential unreliability of the IDs.

By BETH DeFALCO
Associated Press Writer