Article Bank # A-87 NOTE: The text of the footnotes appear at the end of the document.
NEW JERSEY SUPREME COURT TASK FORCE ON
SUPERIOR COURT OF NEW JERSEY
HALL OF JUSTICE
101 S.5th STREET, SUITE 640
Chambers of THEODORE Z. DAVIS
Chief Justice Robert N. Wilentz
and Associate Justices
Re: New Jersey Supreme Court Task Force On Minority Concerns
Dear Chief Justice Wilentz and Associate Justices:
The Task Force is pleased to present to you its final report.
On behalf of all members, it must be said that we have been honored by your request that we be of service to the Court regarding such an important question. Our task could not have been completed without the assistance provided by the Administrative Office of the Courts.
This report attempts to document the impact that the unfinished agenda of our nation and State, which are still struggling to come to terms with the consequences of its history of relations with racial and ethnic minorities, has had upon the judicial system.
The legacy of that history has had a profound impact on our.entire judicial system. Opinions may vary as to the meaning of any particular percentage or other attempt to numerically categorize that which was found. However, there is no dispute that racial and ethnic bias exist. It would be unrealistic to expect all readers of this report to agree with all the emphases and nuances. It is hoped, however, that it is clear that we have tried to search out and critically assess objective evidence wherever available.
The multi-disciplinary character of this Task Force provided us with a wide range of knowledge opinions and varying perspectives. Some members held strong positions on how broad our mission should have been and, of course, on many of the issues studied. However, after six years of immersion in the subject matter, I believe an impressive convergence of minds developed. Of course, as expected, individual diff erences of view among participants remain.
The Task Force submits this report to the Court, knowing quite well that the most difficult task of resolving the problems of racial and ethnic bigotry lay ahead. Their resolution will require an extraordinary intellect, unswerving compassion and most importantly, a level of candor that will engender respect for any decision the Court might reach.
Theodore Z. Davis, Chairman
Task Force on Minority
ROSTER OF MEMBERS AND STAFF OF THE SUPREME COURT TASK FORCE
ON MINORITY CONCERNS [Footnote 1]
Theodore Z. Davis, J.S.C., Chairperson
James H. Coleman, Jr., J.A.D
Severiano Lisboa III, J.M.C.
Shirley A. Tolentino, J.S.C.
Stanley C. Van Ness, Esq.
John E. Wallace, Jr., J.S.C.
Stephen B. Wiley, Esq.
James R. Zazzali, Esq.
Joseph M. Almeida, Esq., Almeida & Livingston, Newark
Patricia B. Atkins, Esq., Director, Camden Regional Legal Services, Inc., Camden
Stephen H. Balch, Ph.D., Chairman,
New Jersey State Advisory Committee to the United States
Commission on Civil Rights, Princeton
Clarence Barry-Austin, Esq., President, Garden State Bar
Edward H. Brown, Legal Redress Chairman, New Jersey State
Conference of NAACP Branches, Newark
Paulette Brown, Esq.President, Association of Black
Women Lawyers of New Jersey, Newark
Wilfredo Caraballo, Esq., Public Advocate, Trenton
Phillip S. Carchman, J.S.C., Mercer County
Bruce Coe, President, New Jersey Business and Industrial
James H. Coleman, Jr., J.A.D.,Springfield
William Coleman, Special Assistant to the Attorney General,
Trenton; President, Blacks in Government, Trenton
Father Raul E. L. Comesanas, St. Anthony’s Parish, Union City
Kevin E. Daniels, Esq., Daniels & Davis-Daniels, Asbury Park
Theodore Z. Davis, J.S.C. Camden County
John J. Dios**, J.S.C., Essex County
Jameson W. Doig, Ph.D., Professor of Politics and Public Affairs,
Woodrow Wilson School, Princeton University, Princeton
Gerald M. Eisenstat, Esq., President, New Jersey State Bar
Association, New Brunswick
Julio M. Fuentes, J.M.C., Newark
Don M. Gottfredson, Ph.D., Dean,
Rutgers Graduate School of Criminal Justice, Newark
Elliot G. Heard, Jr.*, J.S.C., Gloucester County
Mac D. Hunter, J.S.C., Union County
Lee M. Hymerling, Esq., Archer & Greiner, Haddonfield
Lawrence M. Lawson, J.S.C., Monmouth County
Edward Lenihan, President, Renaissance Newark, Newark
Betty J. Lester, J.S.C., Essex County
Severiano Lisboa III, P.J.M.C., Jersey City
Peter Loos, Chairman, Juvenile Delinquency Commission, Trenton
Marilyn Loftus, J.S.C., Essex County
Janetta D. Marbrey, Esq., Law Office of K. Ruth Larson, Edison
John M. Mayson, Esq., Clerk, Superior Court, Trenton
Alicia Olivera Valle, Esq., Assistant United States Attorney,
United States Attorney’s Office, Newark
Sue Pai Yang, Esq., Presiding Officer, Pacific Asian Coalition
of New Jersey, Livingston; and President, President, Asian
Pacific American Association of New Jersey, Bridgewater
Donald Parker, President & CEO, Atlantic Mental Health Center,
Inc., McKee City
Robert T. Pickett, Esq., Member, American Bar
Association Task Force on Minority Concerns, South Orange
Miguel Rivera, Manager, External Affairs, New Jersey Bell, Newark
Ramon Rivera, Executive Director, La Casa de Don Pedro, Newark
Paulette M. Sapp-Peterson, J.M.C., Trenton
Peter Simmons, Dean, Rutgers School of Law, Newark
Alfred A. Slocum, Esq., Public Advocate, Trenton
David Stevenson, Esq., Associate General Counsel,
Prudential Property and Casualty Insurance Company, Holmdel
Cornelius P. Sullivan, J.S.C., Burlington County
Herbert H. Tate, Jr., Esq., Essex County Prosecutor, Newark
Shirley A. Tolentino, J.S.C., Hudson County
Stanley C. Van Ness, Esq., Jamieson, McCardell, Moore,
Peskin & Spicer, Princeton
Hector R. Velazquez, Esq., Hispanic Bar Association, Newark
Theodore V. Wells, Jr. Esq., Lowenstein, Sandler, Kohl,
Fisher & Boyland, Roseland
John E. Wallace, Jr., J.S.C., Gloucester County
Hosea Williams*, Chairman, Coalition of Minorities
in the Judiciary, East Windsor
Stephen B. Wiley, Esq., Wiley, Malehorn & Sirota, Morristown
Betty Wilson, President, Center for Non-Profit
James R. Zazzali, Esq.,Zazzali, Zazzali, Fagella &
Karen D. Carbonello, M.A.
Douglas Childs, Esq.
Keith M. Endo, Esq.
Theodore J. Fetter, Ph.D.
Thomas J. Fisken, Esq.
Robert Joe Lee, M.Div., M.A., Th.M.
Yolande P. Marlow, Ph.D.
John P. McCarthy, Esq.
Marie Pirog, Esq.
Steven Yoslov, Esq.*
In an effort to gain additional insight on the topic of crossracial eyewitness identification, the Subcommittee sponsored a symposium. Two of the speakers were noted and widely-published experts who have served as expert witnesses on the subject: Dr. Robert Buckhout, Professor of Psychology at Brooklyn College, and Dr. Terrence S. Luce, Professor of Psychology at the University of Tulsa. Buckhout and Luce presented a comprehensive review of individual cases and scientific studies and discussed cases of misidentification in which the accused and the witness were of different races or ethnic background.
The third panelist at the symposium was Detective Sergeant Louis Trowbridge, a composite artist with the New Jersey State Police. Trowbridge reported on current policies and procedures used by New Jersey law enforcement officers to assist witnesses in describing suspects.
Findings and Recommendations
WHILE EYEWITNESS IDENTIFICATION IS WIDELY ACCEPTED AS PERSUASIVE
EVIDENCE, IT IS SIGNIFICANTLY LESS RELIABLE THAN IS COMMONLY
BELIEVED. [Footnote 2]
Significance and Reliability of Eyewitness Identification
There is considerable documentation that eyewitness identifications of suspects is significantly less reliable than generally believed. Furthermore, a general review of the research literature found that scholars also agree that own-race bias in recognition accuracy is likewise significant. However, people are generally better at remembering and identifying persons of the same racial/ethnic group.
Factors other than the individual abilities/disabilities of the witness affecting the reliability of identification include:
· Duration of time the witness viewed the suspect;
· Amount of light in the viewing area;
· Interval of time between the time a witness views the suspect and is asked to recognize the suspect; and
· Amount of stress induced by viewing a situation in the presence of a weapon. [Footnote 3]
An examination of available information in this field in Cates that eyewitness identification is a serious problem. Human beings just are not as good at remembering the way others look as they would like to think. Psychology professors who have performed exhaustive research experiments have repeatedly demonstrated that memory is not static, but consists of a set of dynamic processes. The mind is not a mirror, camera, or VCR. A process of encoding begins as soon as one’s mind registers the observation of an event, and the encoding process subjects one’s memory to modification and change from that moment forth.
Unconscious transference also may taint the reliability of an eyewitness. The eyewitness may “recognize” a suspect (e.g., from walking down the street, being in the store, living in the same neighborhood, etc.), but the suspect may not be the perpetrator. in one classroom study, 25% of the “witnesses” identified an [Footnote 4] innocent bystander. Witnesses have admirable intentions, but human memory is only one part of the complex psychological process of recognition.
Notwithstanding the problems found in the area of identification, most jurors give a great deal of weight to eyewitness testimony. Elizabeth Loftus studied the influence a single eyewitness can have in the courtroom. A criminal trial was simulated using 150 students as jurors. A written description of a grocery store robbery in which the owner and his granddaughter were killed was given to all of the students. The students also received a summary of the evidence and arguments presented at the defendant’s trial. Each juror had to arrive at a verdict of guilty or not guilty. Some of the jurors were told that there had been no eyewitnesses to the crime. others were told that a store clerk testified he saw the defendant shoot the two victims, although the defense attorney claimed he was mistaken. Finally, the third group of students was told that the store clerk had testified to seeing the shootings, but the defense attorney had discredited him. The attorney proved that the witness had not been wearing his glasses on the day of the robbery, and since he had vision poorer than 20/400, the witness could not possibly have seen the robber from where the witness was standing. The results from this experiment were:
Percentage of Guilty Verdicts Group 1.) No eyewitness – 18%
Group 2.) Eyewitness – 72%
Group 3.) Discredited eyewitness – 68%
Note that 68% of the jurors who had heard about the discredited witness still voted for conviction despite the defense attorney’s remarks. It seems that people are convinced by a witness who declares with conviction, “That’s the man.” [Footnote 5]
Two experiments on the frequency of identification errors are of particular interest. In the first experiment, a man dressed in a workman’s overalls entered a classroom while a class was in session, made some remarks about the heat, tinkered with the radiator for a minute or two, and left. Two weeks later the man reappeared with five other men of similar appearance and the students were asked to identify the original workman. Seventeen percent of the students chose the wrong man. Another group of students who had not actually witnessed the event but were told they had seen the incident were asked to make a selection. Seventy percent of these students refused and said they coul not recall the event, but 29% did identify one of the men, a man they had never seen. [Footnote 6]
In the second experiment, a lecturer was dramatically attacked in front of 141 students. Immediate descriptions of the attacker were generally inaccurate. When tested seven weeks later, identification accuracy from an array of six photographs was only 40% and even the professor misidentified the assailant; 25% of the witnesses identified an innocent bystander-including even the victim, as the perpetrator. [Footnote 7]
Many theories have been developed to explain inaccuracies in eyewitness identifications, especially those involving a suspect and a witness of different ethnic or cultural backgrounds. Some of these theories have been proven in one study and disproven in another, but these are among the most popular in the research reviewed by the Subcommittee:
Own-race bias is somewhat greater among whites.
Racial prejudice affects the ability to recognize.
Amount of subjects’ interracial experience improves ability to identify.
Males recognize female and male faces with equal ability.
Women recognize other females with greater facility than men. [Footnote 8]
In 1952, lawyer-novelist Erle Stanley Gardner of the difficulties encountered by trained and experienced state police officers in accurately estimating height, weight, and age. The respective variations were five inches, twenty pounds, and fifteen years. [Footnote 9]
In conclusion, the research clearly demonstrates that there are numerous factors that diminish reliability of eyewitness testimony. In fact, the rate at which perpetrators are correctly identified in controlled experiments has never been found to exceed 50%. [Footnote 10]
Familiarity with the Limitations of Eyewitness Identification
This discussion commenced by pointing out how much credence jurors tend to give eyewitness testimony. Since jurors place such great faith in the testimony of eyewitnesses and the unreliablity of eyewitness has been pointed out, it is reasonable to conclude that the average lay person who serves as a juror is not familiar with the limitations of this type of testimony. Some of the questionable assumptions that jurors embrace include the following:
· Police officers have better memory than the average citizen.
· Violent events are more likely to be remembered accurately than nonviolent ones.
· Witnesses are no more likely to overestimate the amount of time that transpired in an event than they are to underestimate it.
· Testimony will be more accurate the more confident a witness appears to be. [Footnote 11]
Beliefs about and knowledge of the reliability of eyewitness identification vary between attorneys who serve as prosecutors and those who work as defense counsel. According to Terrence Luce, when defense attorneys are asked how accurate witness identification is, they estimate an accuracy rate of 30-35%. However, when prosecutors are asked the same question, their estimates are almost triple: most say 90-95% accurate. [Footnote 12] These varying beliefs about the reliability of eyewitness testimony are reflected in the findings outlined by John C. Brigham. Nearly three-fifths (59%) of the defense attorneys surveyed believe that expert testimony should be considered in cases where eyewitness evidence testimony is disputed. No prosecutor and few (5%) law enforcement personnel believed expert testimony should be considered. [Footnote 13]
CROSS-RACIAL IDENTIFICATIONS BY EYEWITNESSES ARE SIGNIFICANTLY
LESS RELIABLE THAN SAME-RACE IDENTIFICATION. THE LEGAL COMMUNITY
IS NOT SUFFICIENTLY AWARE OF THIS EXTREMELY IMPORTANT FACT.
One of the most significant factors accounting for the unreliability of eyewitness identification occurs when the witness and suspect are not bias in recognition accuracy exists. While it has not yet been demonstrated that this own-race bias is universal across all racial groups, evidence of it has been documented for whites, Blacks, and Asians.” [Footnote 14]
As has been seen in the previous section, controlled experiments have found that the probability of making a mistake in identifying someone may be as high as 50%. How much greater is the probability of error in identification when there is a difference in race between the witness and the subject? Responsible authorities tell us that people are generally twice as likely to correctly identify someone of their own race as they are someone of a different race. [Footnote 15] This suggests that the probability of misidentification in instances of cross-racial eyewitness identification is significantly greater.
A review of the responses to questions relative to this issue in the PERCEPTIONS REPORT reveals that New Jersey’s judges and court managers appear to be fairly familiar with the problems of cross-racial identification. The following statement was posed in the survey of perceptions and opinions: “People can identify other members of their own race or ethnic group more accurately than they can people from other races of ethnic groups.” Approximately one-half (47%) judges and nearly 40% of the court managers are aware of some of the problems attendant to identifying persons from other races as compared to identifying members of one’s own race. See Table 16 for additional data.
While the Task Force does not know with any certainty how familiar New Jersey’s attorneys or prospective jurors may be with the limitations of cross-racial eyewitness testimony, it is strongly suspected that their respective knowledge bases are limited.
PERCENTAGE DISTRIBUTION OF RESPONSES TO
THE COURT PROCESS QUESTIONNAIRE, Q49:
“PEOPLE CAN IDENTIFY OTHER MEMBERS OF THEIR OWN RACE
OR ETHNIC GROUP MORE ACCURATELY THAN
THEY CAN PEOPLE FROM OTHER RACES OR ETHNIC GROUPS.”
[Table 16 data has been converted to text below:]
Respondent Groups: Judges, Managers, Both.
Response Categories: Never, Rarely, Sometimes, Usually, Always.
Judges: Never = 3.8%; Rarely = 8.2%; Sometimes = 41.5%; Usually = 41.5%; Always = 5.0%; Number = 159.
Managers: Never = 2.9%; Rarely = 13.3%; Sometimes = 44.8%; Usually = 37.1%; Always = 1.9%; Number = 105.
Both: Never = 3.4%; Rarely = 10.2%; Sometimes = 42.8%; Usually = 39.8%; Always = 3.8%; Number 264.
One additional finding deserves special emphasis. Not only are persons of one racial group more likely to misidentify persons of another racial group, but the risk of misidentification is greatest where the witness is white and the defendant is black. [Footnote 16]
PRACTITIONERS IN THE CRIMINAL JUSTICE SYSTEM, INCLUDING JUDGES,
SHOULD ATTEND EDUCATIONAL SEMINARS ON EYEWITNESS
IDENTIFICATION DEVELOPED BY THEIR RESPECTIVE AGENCIES.
The seminars should cover the topic generally and include information on the conduct of lineups and photo arrays. Research findings on the limited reliability of eyewitness identification generally and the even further diminished reliability of crossracial identification specifically should be included, as well as a review of the developing jurisprudence on this subject. This recommendation should be implemented by the Attorney Generalls Office, the Public Defender’s Office, the State Bar Association, and the Administrative Office of the Courts.
THE SUPREME COURT SHOULD DEVELOP CAUTIONARY INSTRUCTIONS THAT
WOULD BE USED TO INFORM JURIES ON THE ISSUES PERTAINING TO
UNRELIABILITY OF EYEWITNESS IDENTIFICATION GENERALLY AND ON
THE MORE SIGNIFICANT LIMITATIONS RESPECTING CROSS-RACIAL
IDENTIFICATION PARTICULARLY. THE INSTRUCTIONS SHOULD BE
MADE AVAILABLE TO JUDGES FOR USE IN CASES WHERE EXPERT
TESTIMONY ON EYEWITNESS IDENTIFICATION IS INTRODUCED.
There are two basic approaches needed to improve the likelihood that innocent person will not be falsely identified and guilty persons will be correctly identified. First, the probability of misidentification in the early stages of the criminal justice process must be reduced. Suggestions along these lines are provided infra at Recommendation #11 and the accompanying narrative.
The second approach to improving the accuracy of eyewitnesses is to better control the testimony of witnesses at the trial stage in cases where the probability of misidentification is high. In order to achieve this goal, the Supreme Court should promulgate two cautionary instructions for jurors. The first should be a general cautionary instruction for use in all cases containing eyewitness identification. The second instruction should address specific cases where the eyewitness is of a race different of that of the defendant.
The Task Force is aware that the judges and court managers who completed the questionnaire on perceptions of bias believe that judges should not unduly caution juries regarding the possibilities of misidentification where the eyewitness is of a different race than the defendant. Exactly how such cautions would be given and under what circumstances are obviously sensitive matters that will require considerable analysis and assessment.” [Footnote 17] Review Table 17.
PERCENTAGE DISTRIBUTION OF RESPONSES TO
THE COURT PROCESS QUESTIONNAIRE, Q51:
“JUDGES SHOULD MORE STRONGLY CAUTION JURIES
REGARDING POSSIBILITIES OF MISIDENTIFICATION WHERE
THE EYEWITNESS IS OF A DIFFERENT RACE THAN THE DEFENDANT.”
[Table 17 data has been converted to text below:]
Respondent Groups: Judges, Managers, Both.
Response Categories: Never, Rarely, Sometimes, Usually, Always.
Judges: Never = 52.7%; Rarely = 22.2%; Sometimes = 16.8%; Usually = 6.6%; Always = 1.8%; Number = 167.
Managers: Never = 40.4%; Rarely = 22.0%; Sometimes = 26.6%; Usually = 5.5%; Always = 5.5%; Number = 109
Both: Never = 47.8%; Rarely = 22.1%; Sometimes = 20.7%; Usually = 6.2%; Always = 3.3%; Number 276.
THE SUPREME COURT SHOULD ALLOW MORE FREQUENT USE OF EXPERT
WITNESSES ON THE GENERAL PROBLEM OF UNRELIABILITY OF EYEWITNESS
IDENTIFICATION IN TRIALS. COURT RULES SHOULD BE FORMULATED WHICH
AUTHORIZE SUCH TESTIMONY, PARTICULARLY WHERE THE IDENTIFICATION IS
NOT STRONG OR WHERE THE CASE RESTS MAINLY ON THE IDENTIFICATION.
When there is application by the parties and the court determines that eyewitness identification is an issue in the case, expert testimony should be heard. This can be done by motion, pretrial-hearing, or if the issue rises unexpectedly during a trial, a hearing may be held before the expert is offered as a witness.
THE RELIABILITY OF EYEWITNESS IDENTIFICATION, BOTH SAME-RACE AND
DIFFERENT-RACE, IS REDUCED FURTHER BY IDENTIFICATION PROCEDURES USED
BY LAW ENFORCEMENT. IN THE PROCESS OF IN-PERSON LINEUP
IDENTIFICATION, THERE IS FREQUENTLY NO COUNSEL PRESENT. THIS PROCESS
OFTEN OCCURS PRIOR TO A CHARGE BEING MADE AND PRIOR TO ARREST.
The problem of eyewitness identification goes far beyond the limits of the reliability of both same-race and different-race identifications. The goal of improving the likelihood that innocent persons will not be falsely identified and guilty persons will be correctly identified extends beyond the judicial branch since the probability of misidentification increases, in some instances, because of operational law enforcement procedures and practices.
Since the Task Force has no mandate or authority to study racial and ethnic bias outside the Judiciary, no empirical study of the efficacy of law enforcement procedures and practices in New Jersey was conducted. However, a representative of the State Police spoke at the symposium on cross-racial identification.
During the course of reviewing the literature, the Task Force discovered that there is reason for concern that corroborates our own professional experiences and opinions that such procedures and practices introduce additional risks of further reducing the reliability of eyewitnesses. Those impediments must be recognized here as a general statement of what the research literature and the Task Force’s experiences reveal to be problematic.
One major issue is that lineup procedures are often not objective and fair. Robert Buckhout describes some of the problems with law enforcement practices as follows:
Unfair test construction often encourages error. The lineup or the array of photographs for testing the eyewitness’s ability to identify a suspect can be analyzed as fair or unfair on the basis of criteria most psychologists can agree on. A fair test is designed carefully so that all faces have an equal chance of being selected by someone who did not see the suspect; the faces are similar enough to one another and to the original description of the suspect to be confusing to a person who is merely guessing; the test is conducted without leading questions or suggestions. All too frequently lineups or photograph arrays are carelessly assembled or even rigged. If, for example, there are five pictures, the chance should be only one in five that any one picture will be chosen on the basis of guessing. [Footnote 18]
There are other aspects of law enforcement practices regarding eyewitness identification that the literature points to as being troublesome. Some of the problems which have been identified are implied in the following list of suggestions for improving identification procedures:
… minimizing the time delay between the apprehension of the suspect and the identification procedure, creating fair and appropriate lineups using distractor persons of generally similar appearance to the suspect, avoiding biasing instructions or comments while the identification is being made (e.g., implying that the criminal must be in the lineup), avoiding unintentional `nonverbal cuing’ of witnesses about the investigators’ expectations, minimizing the possibility that witnesses will see a photograph of the suspect before they view the photo or corporeal lineup, and so forth. [Footnote 19]
While not a constitutional requirement, all defendants should have, and be advised of, a right to have counsel present at lineup procedures as a matter of policy. If a defendant does not have an attorney, the public defender should have attorneys on call for this purpose. Without counsel’s presence, there exists little or no protection for the defendant.
THE SUPREME COURT SHOULD CONSIDER MAKING A REQUEST FOR LEGISLATION
WHICH WOULD GRANT A RIGHT FOR DEFENSE COUNSEL TO BE PRESENT DURING
LIVE LINEUP PROCEDURES.
Given the serious concerns about identifications, and the potential for injustice, greater protections are needed. Therefore, during all live lineup procedures, the presence of defense counsel is recommended.
Finally, while the scope of this Subcommittee was limited to judicial issues, a few suggestions pertain to matters of interest to the law enforcement community, and should be considered by the Attorney General and County Prosecutors. A more logical and systematic procedure should be used to ascertain identification of suspects by law enforcement officers. Three suggestions aimed at improving the procedure are
1. An updated picture pool with a limited number of similar pictures should be used by witnesses to identify suspects. The picture pool should be reviewed periodically by minorities to assist in determination of the similarity in photos . All photos should be in either black and white or color and of similar size and quality.
2. Law enforcement officers should be trained in cognitive interviewing techniques to assist witnesses in identification. This will make witnesses I time more productive and ensure less suggestibility by officers during identification.
3. Computers should be used to prepare photo arrays for eyewitness viewing. Modern technology can match physical characteristics systematically. Use of computers to select photos for viewing will avoid suggestibility.
Having defense counsel present at lineups, together with improvement and modernization of identification procedures, development of cautionary instructions and use of expert witness testimony in court, will positively promote justice for minority and non-minority defendants. The Task Force believes that these recommendations should be goals which the criminal justice system should seek to achieve to make this aspect of the system more “just” for all.
SINCE DATA ON THE FREQUENCY OF CROSS-RACIAL EYEWITNESS IDENTIFICATION
IN COURTROOM HEARINGS ARE NOT AVAILABLE IN NEW JERSEY OR OTHER
STATES, IT IS NOT POSSIBLE TO DETERMINE THE INCIDENCE AND MAGNITUDE OF
THE PROBLEM OF CROSS-RACIAL EYEWITNESS IDENTIFICATION.
The Subcommittee wanted to determine the frequency and accuracy of cross-racial eyewitness identifications in New Jersey. Data available in New Jersey on this subject are quite limited. Detective Sergeant Trowbridge reported that of 800 witnesses he interviewed in 1985-86, 40% (288) reported that they were of a .different race than the person they allegedly witnessed committing a crime. Furthermore, of the 124 instances in which an identification was made on the basis of a composite sketch, fifty-four involved cross-racial participants. This data set provided the Task Force with a crude estimate of the incidence of cross-racial eyewitness identifications in New Jersey.
The Subcommittee created a data collection form to gather’the specific information required to measure the volume of cross-racial eyewitness cases in New Jersey. Use of the form was problematic because finding a reliable data source was difficult. The study was not implemented for two major reasons. First, courts and public defenders do not have information on the race of an eyewitness unless the case proceeds to trial. Second, prosecutors do not track the race of eyewitnesses unless they also are victims.
THE SUPREME COURT SHOULD AUTHORIZE A STATEWIDE STUDY TO DETERMINE
THE PREVALENCE AND FREQUENCY OF CROSS-RACIAL EYEWITNESS
IDENTIFICATIONS IN CRIMINAL INVESTIGATIONS AND INDICTABLE CASES.
Given that to date no statewide or national data are available to demonstrate how often cross-racial identifications occur, New Jersey should pioneer the study. A proposal for federal grant monies to finance the project may yield funding that will offset the cost. In the event that grant money is not available, alternative ways of conducting the study, such as using a cadre of law students or graduate students to conduct a pilot study, should be investigated. The pilot study may be used to secure federal funding for a larger study.
When there is application by the parties and the court determines that eyewitness identification is an issue in the case, expert testimony should be heard. This can be done by motion, pretrial hearing, or, if the issue arises unexpectedly during a trial, at a hearing held before the expert is offered as a witness.
The affiliations and titles which are listed are those which members had at the time of their appointment to the Task Force. Before the Task Force completed its work, two members died (they are signified by one asterisk) and one retired (this person is marked by two asterisks).
Michael White, Esq., the designee representing Herbert H. Tate, Jr., dissented on the issue of unreliability in eyewitness identification.
Robert Buckhout, Address at Symposium on Cross-Racial Eyewitness Identification (March 18, 1988).
Buckhout, “Eyewitness Testimony”, 231 SCI. AM. 23, 30 (December, 1974).
“Incredible Eyewitness,” 8 PSYCHOLOGY TODAY 116, 117-118 (Dec. 1974).
Loftus, id. at 117.
Buckhout, supra n. 94, at 29-30.
Barkowitz, P. & J.C. Brigham, “Recognition of Faces: Own Race Bias, Incentive and Time Delay”, 12 J. APPLIED SOCIAL PSYCHOLOGY 257 (1982).
F.J. Levine & J.L. Tapp, “The Psychology of Criminal Identification: The Gap from Wade to Kirby”, 121 U. PA. L. REV. 1079, 1088 (1973).
Terrence Luce, Address at Symposium on Cross-Racial identification (March 18, 1988).
Loftus and J. M. Doyle, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL, 111990 Cumulative Supplement” 2 (1987).
Luce, supra n. 100. Luce also refers to a study where attorneys were asked whether judges and juries placed too much emphasis on eyewitness evidence. The vast majority of defense attorneys (90%) felt there was too much emphasis compared to a minority (only 30%) of prosecutors who felt there was too much emphasis. Ibid.
J.C. Brigham, “Psychological Factors in Eyewitness Identifications,” 11 J.CRIM. JUST. 51 (1983).
S.L. Johnson, “Cross-racial Identification Errors in Criminal cases,” 69 CORNELL L. REV. 934 (1984); T. Luce, “Blacks, Whites and Yellows: They All Look Alike to me,” 8 PSYCHOLOGY TODAY 105 (1974); T. Luce, “The Role of Experience in Inter-Racial Recognition,” 1 PERSONALITY & SOCIAL PSYCHOLOGY BULL. 39 (1974).
Luce, supra n. 100 and Buckhout, supra n. 93.
Johnson, supra n. 104 at 938-940, 949.
Helpful material is provided by Loftus and Doyle, supra n. 101. See especially Chapter 7, Jury Education and Selection; Chapter 11, Presenting Expert Testimony; and Chapter 12, Instructions for the Jury. See also Johnson, supra, n. 104, at 974 et seq.
Buckhout, supra n. 94, at 27.
Brigham, supra n. 103.