One of the most compelling evidential concepts in a criminal trial is eyewitness testimony. For many years now, the scientific community has readily recognize the frailties associated with this type of testimony. Unfortunately, the criminal justice system has been some rather slow in catching up with this well-received scientific principle.  Indeed, for the last 20 or 30 years, the courts in this state and elsewhere have relied upon a two-level analysis to determine whether eye-witness testimony is admissible.  The first question is whether the identification process was impermissibly suggestive. The second is whether the suggestiveness of the process produced an “irreparable misidentification.”

Last week, New Jersey’s Supreme Court heard arguments on a case involving eyewitness identification. In that case, the Appellate Division had granted the defendant a new trial because a law enforcement agent provided improper instruction to a witness during a photographic show-up. When the case found its way to the Court, the Court appointed a retired appellate court judge to render a report analyzing whether the current principles of law were outdated given the existing body of scientific thought. The court’s special counsel concluded that the procedure used for purposes of determining the admissibility of eyewitness testimony is no longer valid and further that "there is strong scientific evidence that mistaken identification of criminal suspects occur far too often.” Resultantly, this retired appellate court judge concluded that a reliability hearing should be conduct outside of the presence of a jury to test the integrity of the eyewitness testimony.  He also found that  the government should assume the initial burden of proof.   The issue of whether the opinion of this special expert or some variation should be followed will soon be decided by the Court.