As reported by nj.com, New Jersey’s standards for eyewitness testimony in the courtroom is unreliable and can encourage police misconduct, the New Jersey Supreme Court said in ordering a revision of investigative and court practices. The unanimous ruling follows a recent report recommending tighter restrictions on eyewitness testimony and is likely to have far-reaching effects beyond New Jersey.

The decision tightens standards adopted by New Jersey after the U.S. Supreme Court 34 years ago announced the rules for allowing eyewitness testimony in the courtroom. Since that time, however, “a vast body of scientific research about human memory has emerged,” Chief Justice Stuart Rabner wrote. “That body of work casts doubt on some commonly held views relating to memory.”

Noting most wrongful convictions in the United States are the result of misidentification, the court said judges should conduct pretrial hearings when there is a question about whether police suggestion influenced the outcome of an identification. The court also said jurors should be given greater instruction about how eyewitness testimony can be influenced.

Public Defender Joseph Krakora, who argued the case before the Supreme Court, praised the decision and said it would help eliminate wrongful convictions based on misidentifications. “I am deeply gratified that the court recognized the validity of over 30 years of scientific research on memory and eyewitness identification.”

The case was based on appeals filed by Larry Henderson, who was convicted in 2004 of manslaughter. Krakora argued police pressured a witness into naming him as an accomplice in the fatal shooting in Camden. Krakora argued the officer displaying an array of photos started moving them around as if he were “nudging” the witness toward Henderson’s photo.

An appellate panel in 2008 reversed Henderson’s conviction. Before the Supreme Court would take up the case, it sent the matter to a special master, retired state appellate judge Geoffrey Gaulkin, to determine whether New Jersey’s identification procedures are flawed. Gaulkin’s 86-page report issued last June concluded police need to change the way they obtain identifications and courts have to treat the identifications in a more scientific fashion.

The decision only affects future cases and the two on which this decision was based.

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DONALD C. BARBATI, JR.

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault.  In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.