State v. Henderson and the New Model Jury Charges - New Jersey ...

a-8-08.opn.html
7. Memory Decay
Memories fade with time. And as the Special Master observed, memory decay
“is irreversible”; memories never improve. As a result, delays between the
commission of a crime and the time an identification is made can affect
reliability. That basic principle is not in dispute.
A meta-analysis of fifty-three “facial memory studies” confirmed “that
memory strength will be weaker at longer retention intervals [the amount of
time that passes] than at briefer ones.” Kenneth A. Deffenbacher et al.,
Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness’s
Memory Representation, 14 J. Experimental Psychol: Applied 139, 142 (2008).
In other words, the more time that passes, the greater the possibility that a
witness’ memory of a perpetrator will weaken. See Krafka & Penrod, supra, at
65 (finding substantial increase in misidentification rate in target-absent arrays
from two to twenty-four hours after event). However, researchers cannot
pinpoint precisely when a person’s recall becomes unreliable.
8. Race-bias
“A cross-racial identification occurs when an eyewitness is asked to identify a
person of another race.” Cromedy, supra, 158 N.J. at 120. In Cromedy, after
citing multiple social science sources, this Court recognized that a witness may
have more difficulty making a cross-racial identification. Id. at 120-23, 131.
A meta-analysis conducted after Cromedy, involving thirty-nine studies and
nearly 5,000 identifications, confirmed the Court’s prior finding. See Christian
A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race
Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol’y & Law
3, 21 (2001).
Cross-racial recognition continues to be a factor that can affect the reliability
of an identification. See also infra at section X.
9. Private Actors
The current Model Jury Charge states that judges should refer to “factors
relating to suggestiveness, that are supported by the evidence,” including
“whether the witness was exposed to opinions, descriptions, or identifications
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