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

a-8-08.opn.html
Stat. § 175.50.
VIII. Parties’ Arguments
The parties and amici submitted voluminous briefs of high quality, both
before and after the remand hearing. We summarize their positions without
repeating arguments already addressed. In short, defendant and amici endorse
the Special Master’s factual and scientific findings in their entirety. We have
already discussed many of the State’s responses to those findings. We now
outline the parties’ and amici’s arguments as to the Appellate Division decision
and the viability of the Manson/Madison framework in light of the record
developed on remand.
The State argues vigorously against the Appellate Division’s holding that
a breach of the Attorney General Guidelines results in a presumption of
impermissible suggestiveness. The State contends that such an approach would
penalize the Attorney General for adopting Guidelines designed to improve
identification practices, and reward defendants who intimidate witnesses. In
this case, the State submits, two officers merely tried to reassure a threatened
and reluctant witness; they did not attempt to influence the witness’ selection of
a particular photograph. The State maintains that the Appellate Division’s
response would hamper this and like prosecutions and hinder policy makers in
the future.
As to the current Manson/Madison framework, the State argues that
there is insufficient evidence to warrant a change in the familiar procedure for
evaluating eyewitness identification evidence. First, the State believes that the
likelihood of misidentifications is overstated. See, supra, at section III.
Second, the State offers various arguments as to why the Manson/Madison
framework is an adequate construct to evaluate identification evidence before
trial: the right to a pretrial Wade hearing is already extensive and requires only
“some showing” of impermissible suggestiveness; the Manson/Madison test is
broad enough to incorporate all system and estimator variables; and the
Manson/Madison test instructs judges to focus on confidence demonstrated at
the time of confrontation, before any post-identification, confirmatory
feedback.
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