How best to tell jurors about shortcomings of eyewitness ID

Texas law enforcement agencies must have eyewitness ID policies in place by September 1 of this year which may, but are not required to, follow a "model policy" developed by the Law Enforcement Management Institute of Texas at Sam Houston State University. The Texas Court of Criminal Appeals has said that when police don't follow (an undefined set of) best practices, judges would be guilty of abuse of discretion if they don't allow a defense expert to explain the problems with eyewitness IDs. Even if agencies don't adopt the full model policy, however, and judges allow such experts, Texas statutes and case law mandate no special jury instruction regarding eyewitness testimony. Remarkably, in New Jersey, the Supreme Court recently took it upon itself to issue such a requirement. Reported the New York Times (July 20):

Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the "troubling lack of reliability in eyewitness identifications," it issued instructions ... for judges to give jurors to help them better evaluate such evidence in criminal trials.

A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness's ability to make an accurate identification. 

Factors like the time that has elapsed between the commission of a crime and a witness's identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.

And in cases involving cross-racial identifications, judges were directed to tell jurors that "research has shown that people may have greater difficulty in accurately identifying members of a different race."

"You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness's identification," the instructions say.

The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.

"Human memory is not foolproof," the instructions say. "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."

The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.

Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.

The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said. 

Erroneous eyewitness testimony has been by far the most common cause of false convictions among DNA exonerees and these instructions go a long way toward reducing the chance of false convictions. Though falling short of requiring corroboration of eyewitness testimony - which Grits thinks is justified when the witness had never previously seen the defendant - these sorts of cautions go a long way toward rebutting false assumptions by jurors which have contributed to so many high-profile miscarriages of justice.

The New Jersey jury caution could have implications for Texas courts as well. The Court of Criminal Appeals cited the New Jersey ruling in their own landmark eyewitness ID case last year, State v. Tillman. The Tillman case said judges abuse their discretion if they don't allow expert witnesses to educate jurors when police fail to follow best practices, but the ruling did not identify in detail just what those best practices are. Arguably the SHSU model policy provides significant guidance, but the New Jersey rulings provide an especially strong basis for making such a judgment.

Ironically, Texas' statute was designed to give more deference to law enforcement, but the Tillman case means when proper procedures aren't followed, counties must pony up (in indigent cases) for a defense expert. By contrast, New Jersey's approach informs the jury of essentially the same limitations on eyewitness testimony without having to pay for additional expert testimony. Despite the Texas Legislature's intention to cater to law enforcement by not including a jury instruction, New Jersey's approach - creating a hard and fast rule - would probably be simpler for police, prosecutors and jurors alike.