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

a-8-08.opn.html
The parties devote much attention to this issue. But the debate relates largely
to the need for enhanced jury instructions and the possible use of expert
testimony. Left unanswered amidst many objections is this question: if even
only a small number of jurors do not appreciate an important, relevant concept,
why not help them understand it better with an appropriate jury charge?
Survey questionnaires provide the most direct evidence of what jurors know
about memory and eyewitness identifications. Researchers conducting the
surveys ask jurors questions about memory and system and estimator variables.
The results can then be compared to expert responses in separate surveys.
Survey studies have generated varied results. The Special Master relied on
data from a 2006 survey (the “Benton Survey”) that asked 111 jurors in
Tennessee questions about eyewitness identification and memory. See Tanja
Rapus Benton et al., Eyewitness Memory Is Still Not Common Sense:
Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20
Applied Cognitive Psychol. 115, 118 (2006). Juror responses differed from
expert responses on 87% of the issues. Id. at 119-21. Among other issues, only
41% of jurors agreed with the importance of pre-lineup instructions, and only
38% to 47% agreed with the effects of the accuracy-confidence relationship,
weapon focus, and cross-race bias. Id. at 120. By comparison, about nine of ten
experts agreed on the effects of all of those issues. Ibid.
The State disputes the Benton study for various reasons and instead
highlights results from Canadian surveys conducted in 2009, which showed a
substantially higher level of juror understanding. See J. Don Read & Sarah L.
Desmarais, Expert Psychology Testimony on Eyewitness Identification: A
Matter of Common Sense?, in Expert Testimony on the Psychology of
Eyewitness Identification, at 115, 120-27. The majority of jury-eligible
participants in those surveys agreed with experts on the importance of lineup
instructions, the accuracy-confidence relationship, cross-race bias, and weapon
focus. See id. at 121-22. Still, as the survey authors acknowledged, “substantial
differences in knowledge and familiarity between experts and laypersons were
readily apparent for 50% of the eyewitness topics.” Id. at 127.
Mock-jury studies provide another method to try to discern what jurors
know. The State argues that mock-jury research is unreliable because it is not
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