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

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identifications, impact of high stress, and feedback); State v. Chapple, 660 P.2d
1208, 1220-22 (Ariz. 1983) (memory decay, stress, feedback, and confidenceaccuracy);
People v. McDonald, 690 P.2d 709, 718 (Cal. 1984) (“The
consistency of the results of [eyewitness identification] studies is impressive,
and the courts can no longer remain oblivious to their implications for the
administration of justice.”), overruled on other grounds by People v. Mendoza,
4 P.3d 265 (Cal. 2000); Benn v. United States, 978 A.2d 1257, 1265-68 (D.C.
2009) (citing expert consensus regarding system and estimator variables);
People v. LeGrand, 867 N.E.2d 374, 380 (N.Y. 2007) (confidence-accuracy
relationship, feedback, and confidence malleability); State v. Copeland, 226
S.W.3d 287, 299-300, 302 (Tenn. 2007) (weapons effect, stress, cross-racial
identification, age, and opportunity to view); State v. Clopten, 223 P.3d 1103,
1113 & n. 22 (Utah 2009) (citing with approval research on multiple system and
estimator variables). But see Marquez, supra, 967 A. 2d at 77 (finding scientific
literature “is far from universal or even well established” and that “research is
in great flux”) (discussed supra at ___ n.5 (slip op. at 43 n.5)).
This is not our first foray into the realm of eyewitness identification research
and its applicability to the law. In Cromedy, this Court relied on numerous
social scientific studies when we held that special jury instructions were needed
in appropriate cases involving cross-racial identifications. See Cromedy, supra,
158 N.J. at 120-23, 131. We observed that “the empirical data . . . provide[d] an
appropriate frame of reference for requiring . . . jury instructions.” Id. at 132.
More recently in Romero, supra, this Court held that “there [was] insufficient
data to support the conclusion that, as a matter of due process, people of the
same race but different ethnicity . . . require a Cromedy instruction whenever
they are identified by someone of a different ethnicity.” 191 N.J. at 71-72. Of the
three studies the Court reviewed, one included a small number of participants
and two “did not test for the reliability of identifications of Hispanics by non-
Hispanics.” Id. at 70-71. The Court distinguished the dearth of social scientific
research in the field of cross-ethnic bias from “the convincing social science
data demonstrating the potential unreliability of cross-racial identifications.”
See id. at 69.
When social scientific experiments in the field of eyewitness identification
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