Study after study has
proven over and over again that mistaken eyewitness identification is the
primary cause of the conviction of innocent people in the United States. In all
most every DNA exoneration case tracked by the Innocence Project
at the Cardozo School of Law shows that over 75% of the people eventually
exonerated by DNA evidence were convicted at trial by people who
testified based on their eyewitness identification. Eyewitness identification is powerful
testimony and unless the jury is advised of the vagaries of such testimony most
juries will convict.
Although New Jersey has modified its jury charge on eyewitness
identification to alert the jury to certain variables that might affect a
witnesses memory, such instructions are not the magic bullet, and these
instructions do not completely solve the problem. Therefore, in defending the eyewitness
identification case, the best practices in handling those cases must focus on the
new model jury charges as applied to the facts of the particular case. A jury sitting in these types of cases must be
educated that they cannot place too much weight on this type of testimony.
By way of example, in 1975
while attending undergraduate school at the George Washington University I conducted an experiment in a public/speaking criminal
justice course. For my assignment
without the professor’s or students prior knowledge I had a fellow student and
friend (Jay Swartz), not enrolled in that course, run into the class room while I was standing in front of my the class
giving my presentation with a fake gun and pretend to rob me in front of the
professor, and approximately 25 students. (Footnote, experiment obviously could
not be done in 2013, since if something like this would happen the school would
be in lockdown, and the entire George Washington University would be closed
down with the school surrounded by the entire DC police not including every
other federal police agency in the city, with Jay and I being arrested for some
stupid charge)
Since it was in 1975 and
not 2013, after Jay had left with stealing my book bag, and I continued to do
my presentation, which including within minutes a survey of the professor and
students to see whether they could identify Jay. Not surprisingly, although Jay ran up to me
in well lighted class room, in front of everyone, not one student or professor
could give an accurate description of what Jay looked like, what he was
wearing. They by-in large could not
remember his height, weight, whether he had facial hair etc. It is interesting to note, that not one of
the real students that were the unexpected observers in the experiment were
subject to the stresses of a real crime such as fear, stress, anxiety, visual
handicaps such as distance, lighting or obstructed view. It has been empirically proven over and over
again that fear, stress and anxiety does not improve or focus memory since the
survival mechanism under such strain is “fight or flight”, which shuts down to
a large extent or cognitive memory. Fearful stimuli causes are
brain to go into a flight or fight mode, and is not contusive to forming a
clear memory of the incident. In that
experiment many of the students were focused the fake handgun and thus they
took little notice of Jay facial features or his other physical description.
Therefore, in any
potential eyewitness case the initial description of the assailant may or may
not be reliable. Whether more than
one-witness was involved and whether the second alleged suspect was involved
are issues which can lead to serious misidentification and a wrongful
conviction. This is particularly true,
since a victim, even when mistaken, will normally make a powerful and
convincing witness, and most juries will be empathic to the victim’s
plight. This is especially true when the
victim/witness uses language such as “I am certain that it is him”, or “I am
100% sure that this is the person that robbed me.”
In summary it is essential
that the criminal defense attorney do all that is possible to educate the jury
by using as reference the model eyewitness identification instructions in his
summations to the jury. The criminaldefense lawyer must apply the facts of the case (or lack of facts of the case)
to those instructions so that the jury will understand that eyewitness’ to a
crime might not be as reliable as they seem at first, and that the jury must
exercise their legal duty and find the defendant not guilty, if there is
reasonable doubt as to the eyewitness identification.
Even the best
cross-examination (“Cousin Vinny”) moments, when the eyewitness is shown to be
unreliable through faulty eyesight, or the cooking of grits, is rare in real
life criminal trials.
Law Office of Vincent J.
Sanzone, Jr.
Elizabeth, N.J.
Tel. No. (908)
354-7006
Dated: December
30, 2013
NJ Criminal lawyers, NJ criminal
attorney, NJ criminal lawyer, New Jersey, NJ criminal law attorneys, Hudson County Criminal
Defense Attorney, Jersey City Criminal Defense Attorney, Union County Criminal
Lawyers, Elizabeth Criminal NJ Lawyers
Quote of the Day:
“To sleep perchance to
dream: ay, there’s the rub; For in that sleep of death what dreams may come
when we have shuffled off this mortal coil must give us pause ... For who would
bear the whips and scorns of time, the oppressor’s wrong ... the pangs of
despised love ... the law's delay, The insolence of office and the spurns that
patient merit of the unworthy takes, When he himself might his quietus make
With a bare bodkin? who would fardels bear, To grunt and sweat under a weary
life, But that the dread of something after death, The undiscovered country
from whose bourn no traveler returns, puzzles the will and makes us rather bear
those ills we have than fly to others that we know not of? Thus conscience does
make cowards of us all.”
William Shakespeare
