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

a-8-08.opn.html
produce “an impressive consistency in results,” those results can constitute
adequate data on which to base a ruling. See Cromedy, supra, 158 N.J. at 132.
Thus, based on the testimony and ample record developed at the hearing, we
recognize that a number of system and estimator variables can affect the
reliability of eyewitness identifications. We recount those variables after
considering the vitality of the Manson/Madison framework, a question we turn
to now.
B. The Manson/Madison Test Needs to Be Revised
When this Court adopted the framework outlined in Manson, it recognized
that suggestive police procedures may “so irreparably ‘taint[]’ the out-of-court
and in-court identifications” that a defendant is denied due process. Madison,
supra, 109 N.J. at 239. To protect due process concerns, the Manson Court’s
two-part test rested on three assumptions: (1) that it would adequately measure
the reliability of eyewitness testimony; (2) that the test’s focus on suggestive
police procedure would deter improper practices; and (3) that jurors would
recognize and discount untrustworthy eyewitness testimony. See Manson,
supra, 432 U.S. at 112-16, 97 S. Ct. at 2252-54, 53 L. Ed. 2d at 152-55.
We remanded this case to determine whether those assumptions and other
factors reflected in the two-part Manson/Madison test are still valid. We
conclude from the hearing that they are not.
The hearing revealed that Manson/Madison does not adequately meet its
stated goals: it does not provide a sufficient measure for reliability, it does not
deter, and it overstates the jury’s innate ability to evaluate eyewitness
testimony.
First, under Manson/Madison, defendants must show that police procedures
were “impermissibly suggestive” before courts can consider estimator variables
that also bear on reliability. See Madison, supra, 109 N.J. at 232. As a result,
although evidence of relevant estimator variables tied to the Neil v. Biggers
factors is routinely introduced at pretrial hearings, their effect is ignored unless
there is a finding of impermissibly suggestive police conduct. In this case, for
example, the testimony at the Wade hearing related principally to the lineup
procedure. Because the court found that the procedure was not “impermissibly
suggestive,” details about the witness’ use of drugs and alcohol, the dark
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