Jessica Jones
Legl 110/Compare and Contrast Paper
November 7, 2011

In August 2011, the New Jersey Supreme Court decided on new guidelines making it easier for defendants to request pre-trial hearings to question the validity of eyewitness identifications. Under the new guidelines, a hearing must be held when a defendant presents evidence that the identification of a suspect by a witness may have been influenced. The influence could be any number of factors including police behavior, level of stress during the event, lighting and length of time between the event and the identification. If the evidence is admitted, the jury must be given an explanation giving details of the factors that could contribute to misidentification. Two articles discuss this decision, “Court Raises Bar for IDs by Witnesses” written by Caitlin Dineen for The Press of Atlantic City (October 8, 2011) and “In New Jersey, Rules Are Changed on Witness IDs” by Benjamin Weiser for The New York Times (August 24, 2011), and offer interesting viewpoints on the issue. This paper will discuss those viewpoints. The Press of Atlantic City article did not go into extensive detail as to what the new ruling entailed, instead, it chose to interview local attorneys to get their views. James Leonard Jr. states, “I think it’s going to be a valuable tool for defense attorneys.” While on the surface this new guideline would appear to make prosecution more difficult, Ocean County executive assistant prosecutor Michael Paulhus states that, “It gives both sides an opportunity to address a critical factor in their case…. Anything that’s well-grounded, as this appears to be, enhances the confidence of the eyewitness identification.” Attorney Leonard agrees, thinking that the ruling would not unfairly favor either the defense or the prosecution, that it would benefit both sides. The New York Times article also interviewed attorneys but it was of smaller emphasis to the article as a whole compared to the Press article. The attorneys quoted in the article were a mix of both New Jersey attorneys and also attorneys beyond the state’s borders. Barry C. Scheck, a director of the Innocence Project at the Benjamin N. Cardozo School of Law calls it “a landmark decision.” Public defender Joseph E. Krakora, who argued the case before the New Jersey Supreme Courts feels that the decision goes “a long way toward eliminating wrongful convictions based on mistaken identifications.” The New Jersey attorney general’s office calls the ruling “careful and balanced”. The New York Times article focused more on the details of the 124-page unanimous decision written by Chief Justice Stuart J. Rabner. Factors that influenced the justices’ reasoning such as extensive studies revealing the unreliability of eyewitness identification and advances in technology were highlighted as reasons why it was time for new guidelines to be instituted. Previously to the new ruling, New Jersey followed a United States Supreme Court decision from 1977. Since that ruling, it was estimated by Geoffrey Gaulkin, special master and retired judge tasked with leading an extensive study of scientific research regarding eyewitness identification, that more than 2000 studies had been conducted on the subject. Those studies revealed “a troubling lack of reliability in eyewitness identifications”, according to Chief Justice Rabner. The Press says the ruling was made “after a review of more than 200 studies and testimony regarding eyewitness reliability.” The Times article went into much greater detail regarding the factors that could influence identification, stating that, “the decision listed more than a dozen factors that judges should consider in evaluating the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration,… whether the witness was under the influence of alcohol or drugs, … whether the witness was identifying someone of another race….” The Press simply writes, “(the new standards) include examining the conditions in which the identification was made and updating the charge to the jury”. The Press article focused on the impact this decision has within the state of New Jersey. The Times, while stating that this decision is only applicable to New Jersey, foresees this new guideline having a “considerable impact nationally”, sharing that the New Jersey State Supreme Court “has long been considered a trailblazer in criminal law” and “a leader in establishing guidelines on how judges should handle such testimony.” The New York Times also mentions that the United States Supreme Court is scheduled to hear argument in Perry v. New Hampshire, in November, the first significant case regarding eyewitness identification since it’s ruling in 1977. While both articles were informative, I felt that the article from The New York Times was more substantive on what exactly the new rules were, what factors would be considered in evaluating eyewitness testimony and how this decision may factor in courts of other jurisdictions. The Press of Atlantic City focused on local opinion and did not extrapolate what this decision may mean beyond New Jersey’s borders. I feel that I learned more on the issue courtesy of Mr. Weiser and The New York Times.