TRENTON — It’s often the first question police ask when arriving at the scene of a crime: Did anyone see who did it? That question has been the linchpin of criminal prosecutions for hundreds of years. But experts say eyewitness identifications during police lineups are notoriously unreliable and a leading cause of wrongful convictions. The mind plays tricks, witnesses...
Larry Henderson, who defense attorneys claim was falsely convicted of murder in 2004 because police influenced a witness to pick him out of a police line-up. A new report, based on Henderson's case, suggests N.J. courts should enforce stricter standards for using eyewitensses.TRENTON — It’s often the first question police ask when arriving at the scene of a crime: Did anyone see who did it?
That question has been the linchpin of criminal prosecutions for hundreds of years. But experts say eyewitness identifications during police lineups are notoriously unreliable and a leading cause of wrongful convictions. The mind plays tricks, witnesses can feel pressured to deliver the ID on a suspect, and mistakes just happen.
A report expected to be released Monday will suggest New Jersey adopt the toughest standards in the nation for allowing eyewitness testimony in the courtroom.
A special master assigned by the New Jersey Supreme Court will recommend treating eyewitness testimony more like physical evidence and subjecting it to pretrial hearings to assess how reliable it is, according to a draft copy of the report obtained by The Star-Ledger.
Under the current standards for using eyewitness testimony in court, "judges and juries alike are commonly left to make their reliability judgments with insufficient and often incorrect information and intuitions," writes the special master, former state appellate judge Geoffrey Gaulkin. He adds that memory should be treated as "fragile, difficult to verify and subject to contamination."
Because eyewitness testimony is crucial to so many cases, changes in its treatment could ripple throughout the criminal justice system. Experts said the report represents a "sea change" and is being watched closely across the nation.
"This is really a kind of turning point for the treatment of eyewitness evidence," said James Doyle, director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice. "It’s the culmination of a battle that has gone back almost 100 years between psychologists and the legal system."
Iowa State University professor Gary Wells, an expert on eyewitness issues, said the report is the first of its kind, and New Jersey will be on the cutting edge of criminal justice research if the Supreme Court adopts Gaulkin’s recommendations.
"This report from this judge is just flying around the country," Wells said. "Nothing like this has ever been done."
Gaulkin’s report centers on two iconic procedures used during investigations. One is the lineup, where eyewitnesses view potential suspects, often from behind one-way glass. Then there’s the photo array, where police show pictures of possible culprits. Afterward, the witness is asked to point out which of the people committed the crime.
Every month 6,000 eyewitnesses around the country go through one of those procedures, Doyle estimated.
Authorities nationwide have taken steps to prevent police from improperly suggesting to witnesses which suspect to identify. New Jersey became the first state to adopt federally recommended guidelines in 2001.
But experts said that wasn’t enough; such identifications are unreliable even without police interference because memory is easily influenced. Research also shows witnesses have a more difficult time differentiating between people of races other than their own, the report says.
According to the Innocence Project, a New York-based nonprofit organization, 75 percent of 254 convictions later overturned by DNA evidence involved mistaken eyewitness identifications. In roughly half of those cases, the eyewitness testimony was not backed up by confessions, informants or physical evidence.
Experts say the 30-year-old standard used in nearly every state for judging whether eyewitnesses are reliable is inadequate.
"It’s not based on science at all," said Roy Malpass, who leads the Eyewitness Identification Research Laboratory at the University of Texas.
Gaulkin agrees. He writes that prosecutors should be required in pretrial hearings to present proof that the testimony is reliable. That could include showing that police followed proper procedures in interviewing the eyewitness or showing that the witness was in the right place to identify the suspect during the crime.
"The burden should shift to the prosecution to prove it’s reliable, as opposed to the defendant to prove it’s not reliable," Iowa State’s Wells said. "It’s more like the way physical evidence is handled."
In reaching his conclusions, Gaulkin rejects arguments from prosecutors and public defenders. Prosecutors argued to keep the standards mostly the same, Gaulkin writes, but "the science does not deserve to be so dismissed."
Defense lawyers wanted all eyewitness identifications improperly collected by police to be rejected automatically, but "because the actual impact of improper procedures on a given witness in a real-life setting is unknowable, it is equally likely that such a rule would also suppress an unknown number of accurate identifications."
In the draft copy of his report, Gaulkin aligns his recommendations most closely with those of the Innocence Project, which seeks to exonerate the wrongfully convicted. He calls their suggestions "wide-ranging, multifaceted and highly detailed."
Gaulkin’s report has its roots in a 2004 case in which Larry Henderson was convicted of reckless manslaughter in connection with a murder in Camden. Henderson, now 44, appealed the conviction, saying police improperly influenced a witness to choose him out of a photo lineup.
The case reached the Supreme Court, which assigned Gaulkin to examine the issue in a series of hearings, saying misidentifications by witnesses is the "single greatest cause of wrongful convictions in this country."
The state Attorney General’s Office, Office of the Public Defender and the Innocence Project declined comment on the report before its release. Gaulkin also declined comment.
John Farmer Jr., who was attorney general when the 2001 guidelines were adopted, said Gaulkin’s recommendations would help make the criminal justice system more fair. "The only logistical issue that it raises is that it could prolong the trial," he said. "But I think it’s probably worth it."