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

a-8-08.opn.html
identification procedure violated the Attorney General Guidelines or if a judge
found other evidence of suggestiveness.
Consistent with the Special Master’s report, they now urge this Court to
require a reliability hearing in every case in which the State intends to present
identification evidence. At the hearing, they submit that a wide range of system
and estimator variables would be relevant, and the State should bear the burden
of establishing reliability. In addition, they agree with the Special Master that
juries should receive expanded instructions that address specific variables and
are tailored to the facts of the case.
The Innocence Project proposes a different scheme along the following lines:
defendants would first have to allege that an identification was unreliable; the
burden would then shift to the State to prove, in essence, that neither estimator
nor system variables rendered the identification unreliable -- to be
accomplished through testimony of the eyewitness about the circumstances
under which she saw the perpetrator, and proof from law enforcement about
the identification procedure used; the burden would next shift back to the
defendant to prove by a preponderance of evidence “that there exists a
substantial probability of a mistaken identification”; and if the court does not
suppress the evidence, defendant could file motions to seek to limit or redact
identification testimony and present expert testimony at trial.
Notably, under the Innocence Project’s approach, a violation of the Attorney
General Guidelines would be a factor for the trial court -- and juries -- to
consider; it would not lead to per se exclusion. At the admissibility hearing, the
Innocence Project recommends that trial courts consider both system and
estimator variables, and be required to make detailed findings about them;
afterward, judges would be in a position before trial to tell the parties which
instructions, if any, they plan to give the jury about relevant variables in the
case.
Finally, the Innocence Project encourages this Court to adopt comprehensive
jury instructions that are easy to understand, so that jurors can evaluate
eyewitness evidence appropriately. The Innocence Project maintains that those
instructions should be read to the jury both before an eyewitness’ testimony and
at the conclusion of the case. If at the end of trial the court doubts the accuracy
http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]