It is not unusual to see an innovative statute or policy spread throughout the states. A current obvious example would be gay marriage. Bans on gay marriage made the ballots in waves beginning late in the 20th Century. Hawaii and Alaska were early adopters in 1998, then Nevada in 2002. Eleven states in 2004 adopted a ban. Connecticut and Texas followed in 2005, and Alabama, Colorado, and Tennessee in 2006. Florida joined this group in 2008 and North Carolina did so in the most recent election. Now we see some diffusion of the acceptance of the right to marry as well. Right to work laws are another example. Political scientists often document this type of policy diffusion.
Does diffusion also work among courts? Most certainly yes, and we have an important example that greatly affects the definition of due process and, perhaps, sharpens the right to confront witnesses. In 2011, New Jersey recognized decades of work by psychologists and criminologists that show that eyewitness testimony can be terribly unreliable. In State v. Henderson 208 NJ 208 (2011), we see a story of police intervention. A witness views a photo line-up and cannot identify the perpetrator once it was narrowed down to two. The police officers suggested that one of the two was the perpetrator then the witness identified the defendant. The justices of the New Jersey Supreme Court first heard the case and appointed a Special Master to “evaluate scientific and other evidence about eyewitness identifications.” (page 2) After receiving an extensive report, the justices decided that:
“We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures…
In the end, we conclude that the current standard for assessing eyewitness identification evidence does not fully meet its goals. It does not offer an adequate measure for reliability or sufficiently deter inappropriate police conduct. It also overstates the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”
The justices of the New Jersey court determined that a defendant may raise the issue of “suggestiveness” at the pre-trial stage. “Suggestiveness” indicates that the testimony was subject to suggestion by investigators and is unreliable. Additionally, the judicial system must create new language for jury charges when dealing with eyewitness testimony. The justices were very direct in their charge to the Criminal Practice Committee and the Committee on Model Criminal Jury Chargers. The court instructed the two committees “to consider all of the system and estimator variables in section VI for which we have found scientific support that is generally accepted by experts…” The justices did not require the committees to adopt the language from the Innocence Project, they did ask the committees to examine their recommendations in the course of their work.
At the end of November 2012, the Oregon Supreme Court explicitly followed New Jersey’s lead and went a bit farther. In Oregon, the state now bears the burden of proving that the eyewitness testimony should be admissible, rather than having the defendant have to prove that the testimony is questionable. Even if the state meets the burden, the defendant can still argue that the evidence is prejudicial and the judge can exclude it.
The Oregon case was really two similar cases placed together; at issue in both was the use of eyewitness testimony from witnesses that “had been subject to an unduly suggestive police procedure…” (page 1 of opinion). In State v. Lawson, a husband and wife were shot while camping in a national forest. The wife, Mrs. Hilde, spoke to medical personnel at the scene and to the police several times while receiving treatments and after being discharged from the hospital. In each interview, Mrs. Hilde could not identify the perpetrator until the final interview. This interview took place more than a month after the incident. In the fourth interview, “one of the detectives and Mrs. Hilde reviewed her answer to the leading questions that she had been asked at the first interview.” (page 4) Afterwards, she picked out the squatter as the shooter. In the intervening years before trial, the police showed Mrs. Hilde the defendant’s picture several more times.
In the second case, State v. James, a local grocery store was robbed and a store employee provided descriptions of the suspects and details of the theft as soon as peace officers arrived. Later that day, the officer saw two men that fit the descriptions, found them in possession of alcohol similar to that taken, and asked the suspects to accompany him to the grocery store. The suspects agreed and they were identified as the perpetrators. (page 9)
Will this new trend diffuse to other states? It’s quite likely. The American Judges Association’s journal, Court Review, just came out. The American Judges Association boasts 3,000 current and former judges as its members. It is a special issue focusing solely on eyewitness evidence, and includes articles from some of the top researchers in the field.
While the Innocence Project and others have researched, published, and debated the efficacy of eyewitness testimony, judges and/or legislators must accept these results for change to occur. Now the results of the scientific work are being codified in state law. The New Jersey Supreme Court’s opinion in Henderson reads, in many places, like a research article. Here we see the clear use of a great deal of scientific evidence to enhance the underlying purpose of the criminal justice system—the state must prove guilt beyond a reasonable doubt. The use of faulty or unreliable testimony to incarcerate individuals works against that very purpose. If the testimony is, by definition, doubtful, then more caution should be shown before accepting the statements of eyewitnesses.
 System variables are those within a state’s control. The system variables are: blind administration; pre-identification instructions; lineup construction; avoiding feedback and recording confidence; multiple viewings; simultaneous v. sequential lineups; composites; show-ups.
 Estimator variables are those beyond the state’s control. The estimator variables are: stress; weapon focus; duration; distance and lighting; witness characteristics; characteristics of perpetrator; memory decay; race-bias; private actors; speed of identification.