Our law doesn’t always keep pace with teachings from science, psychology, brain development, or mental health. But when it finally catches up, it is indeed newsworthy. For example, it was in 2012, when in State v. Guilbert, fueled by the Identification Task Force chaired by Justice Borden, and in recognition of the developments in the cognitive science of eyewitness identification, the Supreme Court established new rules for cases in which eyewitness identification evidence is proffered. (“[E]xpert testimony on eyewitness identification is admissible upon a determination by the trial court that the expert is qualified, and the proffered testimony is relevant and will aid the jury.”)

Indeed, I was delighted to see the court overrule earlier decisions (State v. Kemp and State v. McClenden), which held that the factors affecting eyewitness identification were within the knowledge of an average juror. (As a public defender, I had toiled for years under the tutelage of Dr. Elizabeth Loftus, losing countless cases trying to refute that principle.) The Guilbert Supreme Court reasoned that its prior jurisprudence was out of step with the extensive and comprehensive scientific research demonstrating the fallibility of eyewitness identification testimony.