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New Eyewitness Rules in NJ

Thursday, August 25, 2011

Brandon Garrett, Professor of Law at the University of Virginia School of Law, discusses the New Jersey Supreme Court's new ruling on the use of eyewitness accounts in court and the possible national implications.

Guests:

Brandon Garrett

The Morning Brief

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Comments [14]

rose-ellen from jackson hts.

I'm skeptical of the skepticism of the validity of eyewitness tertimony. The issue for me is for how long did the witness see the criminal. If for a short time ,then yes skepticism is warranted. If for a prolonged period of time -while the criminal was engaged in the activity-then unless it was dark or really dim , I would trust the eyewitness testimony if they said they felt certain in their identification. all things being equal of course [dress of people in the line -up, etc.] The examples given on the show were a diversion from the issue- the example of a professor running into a class room for a minute or so does not compare to a rape victim staring at her rapist for 20 minutes say. The other example wherein the weapon identified was not really the weapon used in the crime was of course irrelevant to the couples' stated certainty of their identification as witnesses to the crime. Yet both examples were sited as evidence that the identications were false. And why not use voice identification"line ups" since voices are as individual as faces?Have witnesses do a double identification[voices and visual] and see if they converge[of course only where the criminal spoke].By itself witness identification is not enough to convict but together with other corroborating evidence I find it compelling. That witnesses years later are more then willing to retract their testimony after much publicity in a case and pressure is put on them from activists people committed to overthrowing a guilty verdict is not surprising either.Peer pressure is hard to resist and yrs. after an event- people are amenable to recognizing that being a sole voice is not as rewarding as being part of the present activist campaign.DNA evidence does not by itself mean much- DNA may or may not be present at a crime scene,more then one person may be involved in a crime or the DNA present may not have anything to do with the crime.And when to exonerate a convicted criminal, the finger is pointed at a now deceased person[how convenient] -that to me is a red flag that the conviction was most likely accurate.

Aug. 25 2011 02:36 PM
mitch from Manhattan

In 1967 I was held up by 3 guys while I was manning the desk at a hotel/motel in the middle of the night. They had guns and a sawed off shotgun and hit me in the shoulder and held the gun to my temple and threatened to shoot me unless I told them where the safe was. I had just started there so I had no idea where the safe was. Luckily one of the robbers spotted it and it was open so he took the bag of cash that was in it (it was only $50 which was the start-up cash for the coffee shop.) They added to it the cash from my cash drawer and handcuffed me and the bell hop to each other and left us on the floor. A drunken detective and two others showed up and interviewed us asking rediculous questions. A couple of weeks later I was asked to come to the precinct for a line-up as they had caught these guys who were apparently holding up motels every night in Brooklyn. The line-up was held in the hallway of the precinct under regular lights and the crooks were in t-shirts and they were each beaten up very badly. Bloodied with black eyes. A few detectives were intermingled with me; they with jackets and ties, me in a sportshjirt. One detective was whispering directions to me. there were 4 beaten up guys and I only saw 3 during the robbery, but the detective wanted me to identify all of them apparently, because he stepped out from next to me and faced me and said,. "Take a look at number 4." I was shocked at this and then I told him I had only seen 3 guys, so the 4th might have been the driver...duh. I was called later and told that I did not need to be called to the trial since they had other witnesses from other robberies and didn't need me.
I was held up 3 other times while worked at that motel and the last time by two Mafia guys, but that is another story.

Aug. 25 2011 10:54 AM
BOListener from Brooklyn

During a voir dire I was asked by the defense lawyer if I had confidence in eye witnesses (they had a witness supporting the defendant's innocence, I believe). I said I didn't, because I was the father of twins, and understood how easy it was to make mistakes. A bit rattled, the lawyer pointed out how rare that situation would be, and asked the next candidate the same question.

Now, the prosecutors were two young asian guys, who were about the same height, similar styled suits, same hair cuts. The guy after me replied, in perfect Brooklynese, that I had a point. For example, the two prosecutors were "of the asian persuasion," and he would have trouble distinguishing between the two. It went downhill from there.

I was not selected for the panel.

Aug. 25 2011 10:33 AM
M Maye from Bronx, NY

This issue of cross-racial misidentification is one example of a problem that I believe most black people, and possibly people of color, face every day on their jobs. You sit in a meeting for four hours with a group of white co-workers - face to face across a table; then you walk outside at lunch time, and they walk right by you as if they had never seen you in their life. It's so consistent, that, beyond being very annoying, it can be a source of humor among black folks. We know we can take bets that we can walk right up to the person, and he or she will not recognize you. It has taken me years to realize that this is not intentional racism, but, just cultural incompetence. That it has a name in the context of legal settings is interesting. I think it would be a fascinating poll to see how often non white people experience this in their everyday lives. It's time for Americans to wake up and realize that we need to recognize each other and acknowledge our differences, and show basic respect for our neighbors and co-workers, as basic as just noticing who they are and what they look like.

Aug. 25 2011 10:33 AM
Brandon Garrett from Charlottesville, VA


For those that are interested, the New Jersey decision is here:

http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf

I certainly agree that there are real problems with the way that lineups are done across most of the country. It is a terribly serious problem. I talk about the urgent need to improve lineups in my "Convicting the Innocent" book. And for shorter reading on the subject and a moving video see this link on "Getting it Right" - http://www.innocenceproject.org/Content/Getting_it_Right.php

Aug. 25 2011 10:31 AM
JT from LI

Wonder how long it will take the right to make this an "issue" to rile up their base.

Aug. 25 2011 10:29 AM
gordon from London, uk

Maybe pertinent to this conversation is recent research into how memory works. We think of our memories as discreet little bits of information, like a file on a computer. In fact it now appears that when we call up a memory our brain actually plays a recreation of the event, an interpretation of the past that can easily be influenced by other people, new ideas, change in attitudes, etc.

And oddly, the more we more we think about an event, the more we remember it, the more we interpret it, and the less accurate it becomes.

Just thought that might be applicable here.

Aug. 25 2011 10:28 AM
Paul from New York

I am judge, presiding over civil matters, but am formerly a public defender. One experience I had years ago has always stuck with me when considering the issues of identification. While still a public defender I was in a head-on auto collision in my lane of traffic; the driver of the other vehicle first came up to me in my car to see if everyone was okay, then fled the scene. While I could describe his clothes, I couldn't describe him much more than his race. The next day the local police asked me to come down to the stationhouse and to walk by a room, telling me that they had the teenage son of the registered owner of the car in there, and that the car had been reported stolen just after the accident, and that the family had prior involvement with law enforcement. When I said I was unable to say with any certainty that he was the driver, the police kept asking me if I was sure, and tried to prompt me to make an i.d. I didn't, because while my gut said he was probably the kid who ran from the scene, I certainly could not i.d. him with any certainty. The point, the police were clearly using suggestive procedures they knew to be improper.

Aug. 25 2011 10:23 AM
Holly from Washington Heights

Question: Does this change in rules regarding the use of eyewitness accounts have any effect on cases that have already been decided? Does it establish grounds on which to retry or to appeal cases that were decided based on eyewitness evidence?

Aug. 25 2011 10:22 AM

Eyewitnesses are earnest about what they take the facts to be. Sadly, cops and prosecutors are more often earnest only about getting a conviction. The evidence for this is legion.

Aug. 25 2011 10:22 AM
Tony Bruguier

What's the name of the decision?

Aug. 25 2011 10:22 AM
merrill clark from Summit, NJ

Great future show: cross-racial ids and what it says about us

Aug. 25 2011 10:20 AM
carolita from nyc

No, I don't believe my own eyes. I saw the movie, "The Wrong Man" when I was a teenager and never got over it. This is what I said at my last jury duty when each case that was presented to me was about the accused having been identified after the crime had taken place. The only people I know who are very good at remembering faces are professionals -- casting directors, model agents... Most people I know are always mistaking people for someone else. Unless a person is caught redhanded, I have difficulty relying on eyewitness accounts.

Aug. 25 2011 10:11 AM

Funny that Brandon Garrett should mention police line-ups.... He _must_ be aware that there is overwhelming evidence that line-ups have real problems. For one thing, when people see a line-up, they _begin_ with the assumption that one of the people _must_ be the person they cops are interested in. Far more effective is seeing individuals one at a time, but the police _resist_ this approach because they want a conviction — right or wrong.

Aug. 25 2011 10:10 AM

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