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

a-8-08.opn.html
Saul M. Kassin et al., On the “General Acceptance” of Eyewitness Testimony
Research: A New Survey of the Experts, 56 Am. Psychologist 405, 407 (2001)
(the “Kassin Report”). Ninety-two percent of the participating experts had
published articles or books on eyewitness identification, and many in the group
had testified as expert witnesses in almost 1,000 court cases, collectively. Id. at
409.
Ninety percent or more of the experts found research on the following
topics reliable: suggestive wording; lineup instruction bias; confidence
malleability; mugshot bias; post-event information; child suggestivity; alcohol
intoxication; and own-race bias. Id. at 412. Seventy to 87% found the following
research reliable: weapon focus; the accuracy-confidence relationship; memory
decay; exposure time; sequential presentation; showups; description-matched
foils; child-witness accuracy; and lineup fairness. Ibid.
The State suggests that some of the experts surveyed in the Kassin
Report had motives to overstate the science because they were also forensic
consultants who have been paid for testifying at trials. See id. 414-15. As a
result, the State discounts the results in the Report. The Report’s authors
recognized this potential for bias and looked for distinctions between answers
provided by “forensic consultants” and the 44% of scientists who had never
testified in court. Ibid. The analysis revealed “no significant difference” between
the two groups. Id. at 415.
The studies and meta-analyses published in the ten years since the
Kassin Report show a growing consensus in certain areas of eyewitness
identification research. For example, only 60% of experts in 2001 found
research on the relationship between stress and identification accuracy to be
reliable. Id. at 412. At the remand hearing, all three experts testified that results
from the military stress experiment, see Morgan III et al., supra, and other
studies have reinforced views about the relationship between high stress and
the reliability of identifications.
Among the experts who testified on remand, there was broad consensus
regarding the Special Master’s findings. The State’s expert, Dr. Malpass, agreed
with nearly all of the conclusions offered by Drs. Wells and Penrod. As Dr.
Malpass wrote in 2009, “there is general agreement about the scientific findings
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