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

a-8-08.opn.html
lighting conditions, the presence of a weapon pointed at the witness’ chest, and
other estimator variables that affect reliability were not considered at the
hearing. (They were explored later at trial.)
Second, under Manson/Madison, if a court finds that the police used
impermissibly suggestive identification procedures, the trial judge then weighs
the corrupting effect of the process against five “reliability” factors. Id. at 239-
40. But three of those factors -- the opportunity to view the crime, the witness’
degree of attention, and the level of certainty at the time of the identification -–
rely on self-reporting by eyewitnesses; and research has shown that those
reports can be skewed by the suggestive procedures themselves and thus may
not be reliable. Self-reporting by eyewitnesses is an essential part of any
investigation, but when reports are tainted by a suggestive process, they become
poor measures in a balancing test designed to bar unreliable evidence.
Third, rather than act as a deterrent, the Manson/Madison test may
unintentionally reward suggestive police practices. The irony of the current test
is that the more suggestive the procedure, the greater the chance eyewitnesses
will seem confident and report better viewing conditions. Courts in turn are
encouraged to admit identifications based on criteria that have been tainted by
the very suggestive practices the test aims to deter.
Fourth, the Manson/Madison test addresses only one option for questionable
eyewitness identification evidence: suppression. Yet few judges choose that
ultimate sanction. 9 An all-or-nothing approach does not account for the
complexities of eyewitness identification evidence.
Finally, Manson/Madison instructs courts that “the reliability determination
is to be made from the totality of the circumstances in the particular case.” Id.
at 239. In practice, trial judges routinely use the test’s five reliability factors as a
checklist. The State maintains that courts may consider additional estimator
variables. Even if that is correct, there is little guidance about which factors to
consider, and courts and juries are often left to their own intuition to decide
which estimator variables may be important and how they matter.
As a result of those concerns, we now revise the State’s framework for
10
http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]