“Now the NJ high court is implementing sweeping changes in how police gather statements from those who witness crimes, and how prosecutors present it all to jurors.
“After Labor Day, judges will be required to give jurors plenty of precautions before they consider the testimony they heard during trials.
“For example, jurors will be told: “Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex … Eyewitness identification must be scrutinized carefully.” 1
What if this ruling made police and prosecutors more innovative and proficient?
A note: For the cynics among us, “innovation” does not connote shortcuts. And this is about new science of the human brain not the truthfulness of police officers
That said: In the 1960’s the US Supreme Court undertook what scholars call a “due process revolution” and police of the era called “handcuffing the police.” But think of how much more technically proficient today’s investigators are as compared to their predecessors of the 60’s and 70’s. The detective of 1962 would be bewildered by the techniques of 2012. The new rules about search warrants and field stops helped make police much safer, too. Because police had to demonstrate probable cause or articulable suspicion they did not enter encounters in a premises or on the street with little or no good information about possible threats therein. Everyone in the profession knows of somebody in the profession who lost his life to a threat that a better investigation might have uncovered. Human behavior is the least predictable force in nature. But we all can think of some tragic situation that might have been more thoroughly examined. The new rules were part of the larger impetus for change, whose energy and initiative continue today.
As new neuroscience teaches us more about the ways our brains register impressions independent of our conscious control we may see more rulings like New Jersey’s. The science tells us that our brains have evolved capacities to evaluate situations before we are aware we are forming impressions. Our primitive brains — the grey stuff at the rear and beneath the newer stuff where we think and create — evaluate situations for possible threats and try to fit new information into existing patterns. These so-called “cognitive biases” are present in every brain. They are especially tough for untrained observers to manage amid the emotional trauma of experiencing or watching a crime in progress.
In the growing catalogue of resources available to investigators, how can we create innovation from this new set of rules?
I would bet dollars to sliced fruit (doughnuts seem to have gone the way of the third degree) that if you put five thoughtful detectives in a room for one hour they would come up with a dozen practical solutions to the new New Jersey rules.