“Actually, Eye Didn’t See a Thing!”: How Jury Instructions in New Jersey May Affect the Jury’s Ability to Effectively Weigh Eyewitness Identification

“Actually, Eye Didn’t See a Thing!”: How Jury Instructions in New Jersey May Affect the Jury’s Ability to Effectively Weigh Eyewitness Identification

Beatrice Campbell*

One of the most essential pieces in identifying whether a crime has taken place is if someone witnessed that crime take place. It has long been held that eyewitness identification is an integral part of the process of prosecuting an accused, and it is often given great deference when considering whether the defendant is guilty. Over the past three decades, however, the research behind the malleability of memory has become more prevalent in the scientific community, and many researchers have made efforts to inform courts of the inaccuracies of eyewitness identifications, thus prompting the Supreme Court to create a test that establishes when to admit eyewitness identification. See Manson v. Brathwaite, 432 U.S. 98, 114–15 (1977). While the state of New Jersey has adopted that test as a guideline as to when to admit eyewitness identifications, it did not prevent researchers from “cast[ing] doubt on some commonly held views relating to memory” and “call[ing] into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications.” State v. Henderson, 208 N.J. 208, 217 (2011); see also State v. Madison, 109 N.J. 223, 235–37 (1988).

The New Jersey Instructions

Nevertheless, New Jersey has not turned a deaf ear to such views. Through Henderson, the court has not only refined the way that it examines and admits eyewitness identification into evidence, but also has created jury instructions that are “basically a tutorial on what scientific research has learned about eyewitness testimony and the factors that can make it more dependable or less so.” Nell Greenfieldboyce, A Judge’s Guidance Makes Jurors Suspicious of Any Eyewitness, NPR (Jan. 26, 2016, 5:04 AM), http://www.npr.org/sections/health-shots/2016/01/26/464300484/a-judges-guidance-makes-jurors-suspicious-of-any-eyewitness. The purpose of these more refined instructions were so that “jurors would then be able to tell what eyewitness testimony was trustworthy, what sort wasn’t, and at the end of the day it would lead to better decisions, better court outcomes, better justice.” Id.

The Science

A research study done by David Yokum, a graduate student at the University of Arizona, along with two colleagues, Athan Papailiou and Christopher Robertson, has shed light on the unfavorable consequences of informing people of the factors that can affect the accuracy of eyewitness identification. Id. The researchers utilized videos of mock trials that included the crime of robbery and a murder at a convenient store. Id. The trial was presented in two different ways, with the only significant difference being the quality of the eyewitness testimony. Id. The videos were designed in a way that one video would have really strong testimony, while the other video would have testimony that would be considered more questionable. Id. Another variable that was important to this study was whether the police officer conducting the lineup knew who the suspect was. Instructions suggested to the jury by Henderson included that the lineup be “double-blind,” meaning that the officer facilitating the lineup does not know who the suspect is. Henderson, 208 N.J. at 289. After watching the video, the volunteer jurors either heard or did not hear the New Jersey instructions. Id. The results from the study were that people who heard the instructions were less likely to convict the defendant, even if the quality of the eyewitness testimony was high. Id. Yokum stated that because of the instructions, the volunteer jurors were apprehensive about believing any testimony at all. Id.

Outside Influences

While such results could make other states apprehensive about the use of jury instructions for the factors that affect eyewitness identification, it is important to note that every day, eyewitnesses are bombarded with statements from social media, the news, and their surrounding community that can shape the way that they view and recollect events. Terrance McCoy, Why Many ‘Eyewitnesses’ in the Darren Wilson Investigation Were Wrong, Wash. Post (Nov. 25, 2014), https://www.washingtonpost.com/news/morning-mix/wp/2014/11/25/why-many-eyewitnesses-in-the-darren-wilson-investigation-were-wrong/?tid=hp_mm&hpid=z3. It is also essential to note that “[e]yewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.” Eyewitness Identification, Innocence Project, http://www.innocenceproject.org/causes/eyewitness-misidentification/ (last visited Nov. 10, 2016). For instance, in the case of Michael Brown—the eighteen-year-old who was shot and killed by Ferguson police officer Darren Wilson—there was a plethora of eyewitnesses who stated they saw what happened when Brown was killed. See McCoy, supra.

       At least one witness stated that as Officer Wilson got out of his vehicle, he shot Mr. Brown multiple times as Mr. Brown stood next to the vehicle, McCulloch said. Yet another witness stated that Officer Wilson stuck his gun out of the window and fired at Mr. Brown as Mr. Brown was running. One witness stated there were actually two police vehicles and four officers present, but only one officer fired a weapon. Id.

Nevertheless, during the grand jury testimony, many people conceded that they did not see what they thought they saw, or they actually did not see anything at all. This is not in the least bit shocking, though, as “[p]sychologists have known for a long time that eyewitness testimony is very — and sometimes dangerously — unreliable.” Jesse Singal, Eyewitness Accounts in Ferguson — and Everywhere Else — Are Very Flawed, N.Y. Mag. (Aug. 20, 2014, 1:29 PM), http://nymag.com/scienceofus/2014/08/eyewitnesses-wont-solve-the-michael-brown-case.html. It does, nonetheless, highlight the urgency that states should have in informing jurors about factors that affect eyewitness identification: “Surveys show that large proportions of people, at least in the United States, think that human memory works like a video tape or a DVD . . . and we know of decades of psychological research that human memory, including eyewitness memory, doesn’t work that way.” See Singal, supra.


Alan Zegas, a defense attorney for one of the cases that led to the creation of the jury instructions in New Jersey stated that “[o]ur criminal justice system, our Constitution, has at its foundation the notion that it is better to let a thousand guilty people go free than to convict an innocent person[.]” See Greenfieldboyce, supra. Even if the study examining how people react to eyewitness testimony when given jury instructions about eyewitness identification cannot be measured on a large scale in application to other states, it does offer insight in ways in which other courts can actively educate jurors about eyewitness evidence presented during trial. As constituents participating in a democratic process, jurors should be able to make informed decisions based on the facts presented. Regardless of the fact that “most cases involve various kinds of evidence, not just identification from an eyewitness . . . . [R]are cases that really do hinge on eyewitness testimony can make a huge difference.” Id.

* Beatrice Campbell is a second-year evening law student at the University of Baltimore School of Law, where she is a staff editor for Law Review. She is a Teaching Assistant to Professor Kimberly Wehle for Civil Procedure I, as well as the Director of Academic Affairs for the Black Law Students Association and a member of the UB Honor Board. She also works full-time for the State’s Attorney’s Office for Baltimore City as a Law Clerk in the Juvenile Division.

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