CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, August 31, 2011

Questions about the new eyewitness case (Dripps)

Dripps The New York Times recently carried a front-page story about the perennial problem of erroneous eyewitness identifications.  The focal point for the story was a New Jersey Supreme Court decision, State v. Larry Henderson.

Comments encouraged on this one--does some evidence of actual suggestiveness include the bare fact that the administrator knew the suspect's identity?  If not, what's changed?

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Professor Dripps,

Can you rephrase the question in normal everyday English? Thanks.

Posted by: The Team | Sep 1, 2011 12:40:58 PM

An interesting aspect of the NJ opinion is what hasn't changed. Comparing the NJ Supreme Court's opinion with that of the Special Master whose findings that court was reviewing, indicates a determined declination of an opportunity to de-couple evaluation of eyewitness reliability from misconduct, and adopt something like the "gatekeeper" role that Professor Thompson proposes in the posting below. On the other hand, the opinion brings certain pyschological propositions (e.g., "Memory is not video-tape, but malleable and reconstructive) arguably within range of judicial notice, where currently they are available---if at all---only through expert testimony

Posted by: James Doyle | Sep 3, 2011 8:54:43 AM

My first reaction to Henderson, of course, is to wonder how on earth Governor Christie could have gotten the idea that this was an activist court?

My second reaction is that this decision will cause chaos. Courts are suposed to wade through nine system variable and 13 estimator variables without any requirement of giving any particular weight to anything. This is just a license for judges to do whatever they want. Pro prosecution judges can continue to deny all motions to suppress. Pro-defense judges now probably have more room to maneuver. This does not strike me as a systematic way to reduce the rate of false convictions. It is anyone's guess how wrongful convictions avoided will compare to the amount of guilty who will reap a windfall.

That leads to my third reaction -- how ironic that this reform is promulgated in a case where the identification was completely reliable! There was, after all, a little corroboration here, wasn't there? The witness, Womble, identified Clark as one of the assailants, Clark confessed and identified Henderson as the other, and upon his arrest, HENDERSON ADMITTED THAT HE WAS THE GUY THAT ACCOMPANIED CLARK TO THE APARTMENT!!!! It seems, however, that this little fact does not fit into any of the 21 factors that the trial court is supposed to consider in assessing the reliability of an identification.

I'm all for better jury instructions, but the great irony here is that this decision offers a pretty convincing demonstration that if you leave issues of identification to courts rather than juries, things will get worse, not better. It is beyond me how we will improve the assessment of the reliability of identifications with a 21-factor test that does not permit consideration of corroborative evidence.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Sep 3, 2011 11:56:33 AM

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