Wednesday, September 03, 2014

New Jersey's eyewitness identification jury instructions

"The New Jersey instructiondid not improve juror's ability to discern quality; rather, jurors indiscriminatingly discounted “weak” and “strong” testimony in equal measure. "


"The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity"
Arizona Legal Studies Discussion Paper No. 14-17


ATHAN P. PAPAILIOU, University of Arizona
DAVID V. YOKUM, University of Arizona - James E. Rogers College of Law, University of Arizona - College of Science
Email: dyokum@email.arizona.edu

CHRISTOPHER T. ROBERTSON, University of Arizona - James E. Rogers College of Law, Harvard University - Edmond J. Safra Center for Ethics, Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics
Email: chris.robertson@law.arizona.edu


In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. The courts have only recently begun to react to this evidence, and New Jersey has, in particular, reformed its instructions to jurors, notifying them about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of certain lineup procedures including blinding of the administrator.

Our experiment tested the efficacy of New Jersey’s real-world intervention. In a 2×2 between-subjects design, mock jurors (N = 335) watched a 35-minute murder trial, wherein identification quality was either “weak” or “strong” and either the New Jersey or a “standard” jury instruction was delivered. Jurors were less than half as likely to convict when the New Jersey instruction was used (OR = 2.55; 95% CI = 1.37 – 4.89, p < .001). The New Jersey instruction, however, did not improve juror's ability to discern quality; rather, jurors indiscriminatingly discounted “weak” and “strong” testimony in equal measure. Trial judges should consider only giving the instruction for weak eyewitness evidence, to thereby increase the diagnosticity of trials.


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