The Contrarian: Jersey Trendsetters

—by , September 1, 2011

New Jersey has never been a state to look to the rest of the country for incentive. Since becoming the very first state of the Union to ratify the United States Bill of Rights in 1789, the Garden State has had an undeniable history of doing things its way and allowing the rest of the country to look on in consideration, often resulting in other state governments admitting influence by following suit.

For example, in 2001, New Jersey was the very first state to establish “double-blind” police lineup protocol to reduce the occurrence of suspect misidentification by witnesses. This protocol was scientifically designed and implemented two simple methods to improve the identification process: 1) The officer in charge of the lineup is not made aware of the suspect among the options and 2) Witnesses are to look at the visuals one at a time rather than all at once. Several other police departments in other states have adopted these methods.

We are a state of trailblazers, no doubt. Notwithstanding the inexplicably widespread fascination with the “Dirty Jerz” as indicated by the portrayal of cultural caricatures in the media (Jersey Shore, Jerseylicious, The Real Housewives Of New Jersey and so on), the state wields a very real social, economic and political influence that often transcends popular concerns and, more importantly, brings issues to light that may help us better understand our citizens and create stronger legislation.

If there is anything to take away from the often obnoxious, conflict-ridden Jersey dramas, it is that we believe in standards of conduct and do not accept that anyone is exempt from those standards; this is why you see people scream expletives and draw blood in their defense of that idea. We’ll do what we think is right, and will call you out.

Last Wednesday, in a unanimous 134-page ruling by the NJ Supreme Court, Chief Justice Stuart J. Rabner wrote that the test for reliability of eyewitness testimony in criminal proceedings is flawed and has allowed for too many wrongful convictions, often preventable. Standardized by the United States Supreme Court in 1977, the treatment of this type of evidence has long been accepted as generally admissible by default and was very difficult to challenge by the defense in a courtroom setting.

However, a two-year study on the issue led by a “special master” (retired judge), sparked by several appeals citing misidentification as the cause for wrongful conviction, yields the estimation of more than 2,000 related studies published in the 34 years since, and the glaring evidence that this aspect of due process is not nearly as efficient as it needs to be.

“Study after study revealed a troubling lack of reliability in eyewitness identifications,” Chief Justice Rabner wrote. “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real.”

Essentially, this ruling will revamp the treatment of eyewitness testimony by creating guidelines that would standardize the truth of human error; these guidelines would hold judges, jurors, police personnel and the witnesses themselves much more heavily accountable for their conduct in criminal proceedings by highlighting the many factors that could negatively influence an identification.

Let’s take another look at the 2001 provision regarding police protocol. The rationale for keeping officers out of the loop in terms of a potential suspect is to ensure the officer’s lack of influence, intentional or unintentional, on eyewitness identification, which is not unlikely due to the mere fact of their involvement in the proceedings.

On this same thread, the current upheaval of eyewitness procedure means to create clearer guidelines for police conduct so as to literally rule out the possibility of a simple breach of ethics that could easily be attributed to thoughtlessness on the part of the police.

The other aspect of the 2001 provision was presenting potential IDs to witnesses sequentially, rather than all at once. The rationale here, ostensibly, is to prevent the witness from being overwhelmed by data. This is true, in addition to the very simple but real difference that could make in the accuracy of an eyewitnesses decision to commit to a visual memory, which is, by the nature of memory itself, unreliable. The application of this concept to the overall revision of eyewitness testimony as admissible evidence essentially implies that this type of evidence is innately unreliable due to the fallible nature of the source, the source being a human.

And perhaps most importantly, this decision would force judges to consider the numerous factors that would taint an eyewitness testimony, and thus be responsible for the manner in which this evidence is presented to jurors, whose capacity for consideration and analysis is largely overestimated.

Examples of the factors listed in the Wednesday decision that could influence the validity of a person’s memory include “whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether there was a cross-racial identification and the length of time that had elapsed between the crime and the identification.”

This decision shifts credit back to the accused, innocent until proven guilty by a system that NJ is now identifying as ill-equipped.

New Jersey has a reputation for thinking we are better than the rest of the country, but this is not the case; it is that we understand that no one is exempt from the ideals that made this country great.

Hopefully, our incentives in criminal law will start a trend.

 


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