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Sunday, June 20, 2010

Eyewitness Evidence: More Scrutiny To Protect Innocent

New Jersey courts are on the verge of taking a big step to protect the innocent.
State courts will be advised to adopt stricter procedures for admitting eyewitness testimony into evidence, according to a state court's Special Master's Report (in the case of State v. Henderson). 
The report cites findings that eyewitness evidence is often unreliable.  (There are many other sources with the same conclusion.)  In addition, there are many other reasons why witness testimony can be either flawed or outright perjurious.  This is how flawed cases (where the state cannot reasonably prove a case "beyond a reasonable doubt") or entirely false cases are built against innocent people. 
The report may also be used to combat a pro-prosecution / pro-more government power culture -- which some say has been growing -- where many judges (some of whom are former prosecutors) are heavily predisposed (some would say "biased") towards anything said by a prosecutor or state investigator or police officer.   In such an environment, perjury can flourish.  This is true, particularly in cases where someone in authority can decide that someone is "just a bad guy" and use that to rationalize "cutting corners" or other misconduct to get the miscreant off the streets. 
The potential for abuse is always great.  Often, the opportunity for abuse is also great, and growing.  These proposed procedures may be a big step in the opposite direction, away from state abuse and more towards protecting the innocent.
Don't be afraid that these revisions will lead to lawlessness and more crime.   There are always people in government and law enforcement who use these scare tactics anytime someone complains about protecting civil rights, constitutional rights, procedural fairness and any regard for the potentially entirely innocent.  As for the guilty and the fact that the state's job may get "tougher," the gut reaction here says that state prosecutors and others in law enforcement should buckle down and work harder and smarter.   There are always people who want to bend or nullify the rules -- and violate your rights -- so their job can be easier.  These people will invoke the "fighting crime" mantra and the scare tactics of impending lawlessness.   These are the same people who seem to be allergic to hard work.   They should rise to the challenge.   There's always the private sector -- without its cushy pensions and benefits -- if they find it to be too demanding. 
One final note:  Let's hope that these proposed revisions are applied to civil as well as criminal cases.    
Eric Dixon is a New York attorney who is admitted to the Bar in both New York and New Jersey.  He is available for consultation and comment via 917-696-2442 and

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