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

a-8-08.opn.html
Along with Manson/Madison, the State identifies other safeguards that
protect against wrongful convictions: the Attorney General Guidelines; pretrial,
open-file discovery, see R. 3:13-3; exclusion of highly prejudicial identifications
that result from suggestive conduct or words by a private actor under N.J.R.E.
403; jury voir dire; numerous peremptory jury challenges; cross-examination;
defense summations; and comprehensive jury instructions.
Because eyewitness identification science is probabilistic -- meaning that it
cannot determine if a particular identification is accurate -- the State also
argues that the legal system should continue to rely on jurors to assess the
credibility of eyewitnesses. To guide juries, the State favors appropriate, flexible
jury instructions. The State maintains that expert testimony is not advisable
because the relevant subjects are not beyond the ken of the average juror.
Among other things, the State also rejects the use of the analogy that human
memory is like trace evidence, which all the other parties advance.
Defendant embraces the decision of the Appellate Division and agrees that a
violation of the Attorney General Guidelines should create a presumption of
impermissible suggestiveness. With regard to the Manson/Madison test,
defendant and amici argue that more than thirty years of scientific evidence
undercut the assumptions underlying the Supreme Court’s decision in Manson.
They believe that for the following reasons, the Manson/Madison framework is
insufficient to ensure defendants’ due process rights to a fair trial: courts only
consider the five reliability factors in Manson/Madison after finding
suggestiveness, even though some of those factors may themselves be unreliable
because of suggestive police behavior; the framework focuses only on police
misconduct despite research that shows estimator variables and feedback from
private actors can also affect reliability; its all-or-nothing remedy of
suppression is too inflexible; it fails to provide jurors context and guidance; and
it does not deter suggestive police procedures.
To correct those flaws, defendant and the ACDL initially proposed two
alternative frameworks to replace Manson/Madison. Among other arguments,
they analogized to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d
694 (1966), and argued that eyewitness evidence should be excluded per se if an
http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]