Chief Justice Stuart Rabner of the New Jersey Supreme Court raised troubling questions about the reliability of and reliance upon eyewitness identification, with vast implications for the entire justice system, when he delivered the 18th annual Justice William J. Brennan Jr. Lecture on State Courts and Social Justice on February 22.

In introducing Rabner, New York State Chief Judge Jonathan Lippman ’68 referred to Rabner’s “groundbreaking decision” in State v. Henderson, a landmark case in which the New Jersey Supreme Court ruled last August that state courts should change the ways eyewitness identification is evaluated at trial and the content of related jury instructions in light of numerous studies calling the accuracy of witness identifications into question.

Jonathan Lippman, Stuart Rabner, Samuel EstreicherRabner, in his lecture, explained that the unanimous Henderson opinion found that the decades-old legal framework for evaluating eyewitness identification evidence had been shown by more recent social science literature and expert testimony to be outdated.

“It’s no longer accepted that memory functions like a video recording,” said Rabner, “where all one need do is press a button and a witness can recount with 100 percent precision what it is that he or she observed at the time of the crime.... Instead, social scientists have demonstrated that there are many factors which affect and possibly distort memory.”

In New Jersey, he said, judges would now be charged to consider a broad set of variables influencing the reliability of identifications, and the courts would create revised jury instructions, tailored to individual cases, that focus on specific relevant factors affecting the quality of eyewitness identifications.

Rabner explained that the seminal U.S. Supreme Court case Manson v. Brathwaite (1977) had defined the judicial approach to assessing eyewitness evidence ever since, requiring judges to determine whether the police’s method of making an identification had been “impermissibly suggestive,” and, if yes, whether it resulted in “a very substantial likelihood of irreparable misidentification.” Among the five factors proffered for judges to assess the reliability of an identification were the witness’s opportunity to view the perpetrator at the time of the crime, the accuracy of the witness’s description, and the witness’s level of certainty in making the identification.

Those criteria assume something crucial, Rabner said: jurors’ ability to spot wrongful identifications. But in the predictable explosion of eyewitness identification studies published since Manson, he explained, evidence has emerged that witnesses may find it difficult to correctly identify a suspect of another race. Further, he said, a high level of witness confidence, one of the Manson-codified factors judges are supposed to consider in determining the value of an identification (as part of the “Manson test”), may be unrelated to the accuracy of an eyewitness’s description.

A special master appointed in the Henderson case reported to the New Jersey Supreme Court after considering more than 200 scientific studies as well as testimony from leading eyewitness identification experts. The findings indicated that eyewitness misidentifications are the leading cause of wrongful convictions nationwide and illuminated the malleability of memory, which is affected both by the specific manner in which police administer identifications and by uncontrollable factors such as lighting, distance, racial differences, and eyewitness stress (heightened when, for instance, the criminal carried a weapon).

“The irony of the existing test is that the more suggestive the [identification] procedure, the greater the possibility that the witness will report a higher level of confidence and a better ability to view,” said Rabner. “Rather than deter suggestive procedures, the test can in fact lead to the opposite outcome.” Compounding the problem, he said, a witness’s degree of confidence is the best predictor of a jury’s verdict.

Under the current all-or-nothing method, Rabner said, judges can only admit or suppress identification evidence, but the Henderson ruling allows for a more flexible approach that includes assessing admissibility of evidence pretrial to give defendants a chance for a hearing when suggestiveness might have affected an eyewitness.

“We continue to wrestle with the issue of eyewitness identification in the 21st century because of the vital role that it plays in our system of justice,” said Rabner. “It’s a routine part of so many criminal trials, and it bears directly on guilt or innocence, which means that the very integrity of the criminal justice system and our ability to conduct fair trials as a society is at stake.... Everyone involved in this debate—the victim, the defendant, the investigator and the judge, defense attorneys, prosecutors—shares a common interest in making sure that the right person is identified and that that identification is put to a fair test.”

The Brennan Lecture was presented by the Dwight D. Opperman Institute of Judicial Administration, whose faculty co-director Samuel Estreicher, Dwight D. Opperman Professor of Law, made preliminary remarks.

Watch the full video of the event (1 hr, 6 min):