Wrongful Convictions Lead to Changes to Eyewitness Rules

New Jersey Public Defender Joseph Krakora explains changes to police and court procedures with eyewitnesses, including special jury instructions informing them of memory issues.

Eyewitness identifications in criminal cases have been called the leading cause of wrongful convictions in the U.S. In New Jersey, the state’s Supreme Court has issued new rules governing how police and the courts handle eyewitnesses, including giving additional instructions to jurors. New Jersey Public Defender Joseph Krakora told NJ Today Managing Editor Mike Schneider that the changes come after years of research, coupled with exonerations from DNA evidence.

Krakora represented Larry Henderson, who was convicted in a homicide case in Camden County, at a special hearing ordered by the New Jersey Supreme Court. Part of the evidence against Henderson was an eyewitness who had identified him from a police photo array. The courts later deemed the procedure to be improper.

Krakora explained that photo arrays are more common than actual lineups and involve police showing a witness a photograph of the suspect along with five others. “Of course if correctly done, they’re people who resemble the appearance of the suspect,” he said. “And they put those pictures in what’s known as a photo array and ask the witness if he or she can identify the perpetrator from that array.”

Research done mainly by psychologists over the past three decades has shown that memory isn’t perfect, Krakora explained. “Memory is not like a videotaped recording of an event. It’s a process of assimilating knowledge. It can deteriorate over time,” he said. “And in essence what has been demonstrated over time is the fallibility of memory and eyewitness identification as a result of that.”


Krakora said it’s impossible to tell how many people are in prison because of misidentification. One of the factors that moved the courts to increase regulations for witnesses has been the exoneration of prisoners with DNA evidence. He explained that with DNA evidence, it’s known that the convicted individual is innocent and often when the case is reviewed there were eyewitnesses — including the victim — that identified the convicted person as the perpetrator. Krakora said it’s more difficult to determine in cases without DNA like a street robbery, which often relies on witnesses. He said he is certain, however, that some percentage of those people have been misidentified, though not necessarily on purpose.

“The other important aspect of it, these are not people — meaning witnesses, victims — who are intentionally misidentifying someone,” Krakora said. “These are honest mistakes by people who actually believe, of course, that the person they’re identifying is the perpetrator of the crime.”

To reduce the risk of misidentification, Krakora said the Attorney General has set guidelines. One example applies to police who call eyewitnesses back to the station to look at a photo array. They are required to tell the witness that the perpetrator may or may not be among those pictured. Krakora explained that this way, witnesses don’t feel that they’re supposed to pick one of the photos. “Something as simple as that has been shown to reduce the risk of misidentification,” he said.

The New Jersey Supreme Court has ruled that additional jury instructions be given at trial, which include some of the scientific research results that memory can be fallible. “That’s why it’s so important because so much of this is counter-intuitive and jurors are likely to assume that people are accurate in their identification notwithstanding any number of factors that may impact on that reliability,” Krakora said.

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