The Novel New Jersey Eyewitness Instruction Induces Skepticism but Not Sensitivity

Abstract

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. Although courts have only recently begun to react to this evidence, the New Jersey judiciary has reformed its jury instructions to notify jurors 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 alternative lineup procedures, including blinding of the administrator. This experiment tested the efficacy of New Jersey’s jury instruction. 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” instruction was delivered. Jurors were more than twice as likely to convict when the standard instruction was used (OR = 2.55; 95% CI = 1.37–4.89, p < 0.001). The New Jersey instruction, however, did not improve juror's ability to discern quality; rather, jurors receiving those instructions indiscriminatingly discounted “weak” and “strong” testimony in equal measure.

Sensitizing Potential Jurors to Variations in Eyewitness Evidence Quality Using Counterfactual Thinking

“…Although it is common among studies of juror sensitization interventions to manipulate many factors related to eyewitness memory simultaneously to produce varying evidence strength conditions (e.g., Papailiou et al, 2015), our two conditions were rather uniform in the quality of the factors they described. Low quality conditions described uniformly unfavorable eyewitness factors, whereas high quality conditions described uniformly favorable eyewitness factors.…”

“…Further, a recent representative survey of U.S. citizens revealed that a sizeable minority agreed with experts on some general principles of memory (e.g., that memory is not permanent); it should be noted, however, that overall performance on some issues not relevant to the present study was markedly inconsistent with the science (e.g., amnesia; Simons & Chabris, 2011). Additionally, in recent work on juror sensitization to eyewitness evidence, jurors were somewhat influenced by variations in witnessing and identification conditions (e.g., lighting conditions and pre-lineup instructions) irrespective of other interventions (i.e., instructions and expert testimony; Jones, Bergold, Berman, & Penrod, 2015, see also Boyce, Beaudry, & Lindsay, 2007), although such effects are not found consistently (Papailiou, Yokum, & Robertson, 2015). The issue, then, is to determine how to induce jurors to apply their knowledge and intuitions about eyewitness memory to effectively evaluate the relevant antecedent conditions (system and estimator variables) that bear on an eyewitness accuracy.…”

“…Online studies of undergraduate participants, such as this one, may yield externally valid results despite their low ecological validity (see Bornstein, 1999;O'Neil, Patry, & Penrod, 2004). The stimulus case we used, however, does not closely match the format of trial summaries used in other forms of jury research (i.e., the witness testified in front a grand jury within a few days of the lineup task) and does not include other evidence (e.g., victim testimony).…”

The Role of Estimator Variables in Eyewitness Identification

“…Essentially the same interpretation can be found in jury instructions that are now used in the states of New Jersey and Massachusetts. For example, according to Papailiou, Yokum & Robertson (2015), New Jersey jury instructions admonish jurors that:…”

“…Ironically, that key resultnamely, that reliability for a given level of confidence is largely unaffected by estimator variables -may have been overlooked because of the field's once negative view of the information value of confidence. For example, the New Jersey jury instructions presented in Papailiou et al (2015) provides the following (very common) statement about the information value of eyewitness confidence:…”