WHO SAW WHAT

Will says that he saw Danny commit a crime.  The jury believes Will.  Danny is convicted.  That’s it then, isn’t it? Surely, once the jury believes the eyewitness, the defendant’s goose is cooked.

But there is a wrinkle, and one that can still be raised on appeal if the proper record was preserved.  See, human memory is not always all that it’s cracked up to be.  Of all the people who were convicted and were later proved to be innocent by DNA testing, between 60 and 75% were convicted on the strength of eyewitness testimony. This may mean that, out of all the innocent people in prison, up to three out of four are there because a Will thought he saw a Danny do it, and the jury believed Will. But Will was wrong.

There are many factors that make memory so fallible – time since the crime occurred, lighting, distance, and stress are a few among them.  That last one means that the victims themselves may be especially vulnerable to false memories, a particularly scary prospect.

The state of New Jersey has taken the lead in walking the tight rope between hearing all truthful testimony and guarding against false identification.  A defendant there may have a hearing on the subject of an eyewitness’ testimony before trial, under some circumstances. It is still very difficult to prove mistaken identification – there must be, in good lawyerly jargon, a “very substantial likelihood of irreparable misidentification” – but there is now a process. Other states continue to rely on the old rules for admission of evidence to solve a problem that is only beginning to be recognized as such. In those states, which include Florida, the appellate process remains a key to testing the credibility of a witness the jury believed.

Hat’s off to the ABA and their publication Litigation News for drawing the profession’s attention to the developments in New Jersey.