Do Judges’ Instructions About Eyewitnesses Really Work?: A 2019 Update

Many problems are associated with eyewitness identifications. Perhaps most importantly, eyewitness testimony can predispose jurors toward guilty verdicts,4 and has contributed to wrongful convictions and incarcerations.5 Indeed, 75% of the wrongfully convicted persons released by DNA evidence were convicted based, at least in part, on eyewitness testimony.6 In 2011, New Jersey’s Supreme Court in State v. Henderson approved new judicial instructions in an attempt to educate jurors about the many factors that can influence the accuracy of an eyewitness,7 but subsequent research questions the efficacy of such judicial instructions.8 A special issue of Court Review released right after the Henderson9 decision reviewed the psychological research on eyewitnesses. This included an article on judicial instructions in cases involving eyewitnesses, but research regarding Henderson instructions was too new to be included.10 In the six years since the 2012 review was published, researchers have conducted studies specifically testing the Henderson instructions, including the current study which examined the effects of case facts, judicial instructions (including a proposed verdict form), and mock-jurors’ pre-existing belief in the fallibility of memory on perceptions of the eyewitness and defendant in a case involving eyewitness testimony. This article has two purposes: 1) to provide an up-to-date summary of the laws and research regarding eyewitnesses and eyewitness memory since the 2012 special issue of Court Review and 2) to present the results of a new study testing whether instructions and a verdict form help jurors distinguish between good and bad eyewitnesses. This updated review will ultimately make recommendations for how judges should approach the problem of faulty eyewitnesses and jury instructions—and how jurors interpret their testimony