The New Jersey Supreme Court issued a lengthy, sweeping decision on August 24th on the standards for evaluating eyewitness testimony in criminal cases that is garnering national, and even international, attention. Though the case entitled State v. Larry Henderson and its companion case entitled State v. Cecilia, involved eyewitness identification testimony, the Supreme Court dealt at great length with more general issues eyewitness testimony and “how memory works.” Those parts of the opinion may be especially helpful in challenging the memory of plaintiffs and witnesses in employment cases generally, and in hostile environment claims in particular.

Why would that be the case? Well, the Supreme Court reviewed a wide variety of scientific studies on memory and eyewitness recounting of events to note that “an array of variables can affect and dilute memory.” The scientific literature divides these variables into what are known as system variables (those which define the structure or structures in which the event is reported or recounted) and estimator variables (those which relate to the witness and the specific experience(s) being recounted). Understanding the latter may be quite helpful in undermining witness credibility and memory in a hostile environment case.