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New Jersey Supreme Court Embraces Greenberg Traurig and Innocence Project Arguments to Adopt New Witness Identification Standards

NEW JERSEY – Sept. 26, 2023 – The New Jersey Supreme Court recently issued a unanimous opinion that will make criminal trials in the state fairer by curtailing first-time in-court witness identifications (FITIC IDs), an inherently suggestive procedure where defendants are positively identified for the first time during trial from the witness stand, rather than in pre-trial investigations.

The opinion was issued in a case argued by lawyers from global law firm Greenberg Traurig, LLP, who were representing the Innocence Project as friend of the Court. The case, State v. Watson, was an appeal by Quintin Watson who had been convicted of robbing a bank in January 2017. In this case, Watson was convicted based on a FITIC ID by a witness who before trial had failed to identify him in a photo array and, in fact, identified another person after first not choosing anyone “because they all looked alike.”

Lawyers argued that, based upon the social science marshalled in the Innocence Project brief, there are no circumstances in which a FITIC ID can be deemed sufficiently reliable to satisfy due process and the court should create a presumption against the admissibility of FITIC IDs.

The court agreed with the fundamental arguments, holding that FITIC IDs can be conducted only when there is “good reason” for them, for example if the witness knew the perpetrator and identified them after the crime occurred, often the case in matters of domestic violence.

The facts of the Watson case, and the impact of scientifically unreliable and suggestive witness misidentifications, are not unique. The National Registry of Exonerations lists 3,373 exonerations nationwide, with 883 cases involving at least one witness who mistakenly identified the exoneree as the person the witness saw commit the crime. Of the 570 individuals exonerated by DNA testing, 320 were originally convicted based, in part, on one witness mistakenly identifying the exoneree as a person the witness saw commit the crime.

“We are pleased that the New Jersey Supreme Court dramatically curbed the use of this obviously suggestive and unfair ID procedure,” said Chris Fabricant, director of strategic litigation at the Innocence Project. “The decision will help protect innocent New Jerseyians from wrongful conviction.”

“Mistaken identification results in more wrongful convictions than all other causes combined. I applaud the Court’s decision and its instruction to the Rules Committee to implement appropriate revisions, which represent a massive step to reduce the devastating impact unreliable eyewitness identifications in New Jersey,” said Ian S. Marx, a Greenberg Traurig New Jersey Litigation shareholder who argued the case on behalf of the Innocence Project.

The Greenberg Traurig team was led by Global Pro Bono Program Chair Caroline J. Heller and Marx, and included Tori W. Rose and Craig Martin. The Innocence Project team was led by Fabricant.

View the full decision here.

About The Innocence Project: The Innocence Project works to free the innocent, prevent wrongful convictions, and create fair, compassionate, and equitable systems of justice for everyone. Founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the Benjamin N. Cardozo School of Law at Yeshiva University, our work is guided by science and grounded in anti-racism.

About Greenberg Traurig’s New Jersey Office: Established in 2002, Greenberg Traurig’s New Jersey office has grown into a team of nationally recognized attorneys who provide legal advice to international, national, and local business and technology clients. The New Jersey office’s practice areas include Complex Commercial and Class Action Litigation; Hatch-Waxman Litigation; Pharmaceutical, Medical Device & Health Care Litigation; Product Liability & Mass Torts; Corporate; Restructuring & Bankruptcy; Construction Law; Franchise & Distribution; Immigration & Compliance; Intellectual Property & Technology; Labor & Employment; Real Estate; Tax; and Private Wealth Services. As a significant contributor to the firm's international platform, the New Jersey team offers clients both the know-how and geographic reach of a global law firm combined with the dedication and responsiveness of a local firm.

About Greenberg Traurig: Greenberg Traurig, LLP has more than 2650 attorneys in 45 locations in the United States, Europe and the Middle East, Latin America, and Asia. The firm is a 2022 BTI “Highly Recommended Law Firm” for superior client service and is consistently among the top firms on the Am Law Global 100 and NLJ 500. Greenberg Traurig is Mansfield Rule 5.0 Certified Plus by The Diversity Lab. The firm is recognized for powering its U.S. offices with 100% renewable energy as certified by the Center for Resource Solutions Green-e® Energy program and is a member of the U.S. EPA’s Green Power Partnership Program. The firm is known for its philanthropic giving, innovation, diversity, and pro bono. Web: