Here is a piece from the excellent Concurring Opinions blog about eyewitness testimony.

I would like to underscore Brandon’s point about reform efforts that are currently underway. While for the most part, the criminal justice process is stuck in a bad place (thanks to a large degree to the US Supreme Court), it is refreshing to note that a few local and state jurisdictions are moving ahead with thoughtful reforms.

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It should be noted that the Oregon decision comes on the heels of New Jersey’s landmark decision regulating lineup procedures (Steve v. Henderson, which was followed up by a reform of the pertinent jury instructions (http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.pdf). Also notable in this regard is legislative effort in Texas that has sprouted a thoughtful Model Policy for conducting eyewitness identification procedures (the Model Policy was drafted by the Bill Blackwood Law Enforcement Management Institute of Texas at the Sam Houston State University:http://www.lemitonline.org/publications/ewid.html).

New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized. Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications. The new instructions say accurate identifications may be hampered by stress, distance, poor lighting and differences in the race of the suspect and the witness. “Research has shown that people may have greater difficulty in accurately identifying members of a different race,” the instructions say. The instructions also warn of problems in lineups. The passage of time before a lineup or the behavior of a police officer during the process can influence the witness, the instructions say. Experts told the Times that the new instructions are expected to influence other state courts. University of Virginia law professor Brandon Garrett told the newspaper that the instructions are the most detailed and careful in the country.

Check out Instruction 7-7-2 in the current MJ Benchbook. There is no rule prohibiting the defense to seek a more detailed instruction citing research and the New Jersey rules as foundation, especially if this is a critical issue in the case.

Next step, can you get an expert in eyewitness identification issues.

I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that “My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it.” That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.

Sandra Guerra Thompson
University of Houston Law Center
Ohio State Journal of Criminal Law, Forthcoming
University of Houston Law Center No. 2010-A-1

Abstract: Despite a growing awareness that mistaken eyewitness identifications contribute significantly to wrongful convictions, most courts continue to apply federal due process criteria for admissibility of eyewitness identification that has proved useless in protect against the use of highly unreliable evidence. In response, this Article reviews the path-breaking decisions of several State Supreme Courts that have blazed their own trail. It explores the issues that courts have addressed, the rules they have devised, and the legal grounds for their decisions, and from this, concludes that State Supreme Courts can implement appropriate criteria that would in fact promote accuracy and fairness in the use of eyewitness identification. Part I briefly outlines and critiques the Supreme Court’s jurisprudence on eyewitness identifications and due process. It treads on ground well-worn by scholars who have for decades decried the Court’s failure to provide a due process test that would protect against the use of unreliable identification evidence. Part II explores the role that State appellate courts can play in developing a jurisprudence of eyewitness identification evidence that meaningfully incorporates social science research and carefully balances the interests of law enforcement and the accused. Finally, because of the superior role that judges have in protecting both constitutional and civil rights as well as the integrity of the administration of criminal justice, the article concludes that it is incumbent on State Supreme Courts to show leadership in developing solutions to the problems that plague this area . Accordingly, Part III argues that State Supreme Courts are well-suited to take an active part in the “laboratory” model of criminal justice that characterizes our federalist system.