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

a-8-08.opn.html
“memory decay” above.)
The above factors are not exclusive. Nor are they intended to be frozen in
time. We recognize that scientific research relating to the reliability of
eyewitness evidence is dynamic; the field is very different today than it was in
1977, and it will likely be quite different thirty years from now. By providing the
above lists, we do not intend to hamstring police departments or limit them
from improving practices. Likewise, we do not limit trial courts from reviewing
evolving, substantial, and generally accepted scientific research. But to the
extent the police undertake new practices, or courts either consider variables
differently or entertain new ones, they must rely on reliable scientific evidence
that is generally accepted by experts in the community. See Chun, supra, 194
N.J. at 91; Moore, supra, 188 N.J. at 206; Rubanick, supra, 125 N.J. at 432.
We adopt this approach over the initial recommendation of defendant and
the ACDL that any violation of the Attorney General Guidelines should require
per se exclusion of the resulting eyewitness identification. Although that
approach might yield greater deterrence, it could also lead to the loss of a
substantial amount of reliable evidence. We believe that the more flexible
framework outlined above protects defendants’ right to a fair trial at the same
time it enables the State to meet its responsibility to ensure public safety.
D. Pretrial Hearing
As stated above, to obtain a pretrial hearing, a defendant must present some
evidence of suggestiveness. Pretrial discovery, which this opinion has enhanced
in certain areas, would reveal, for example, if a line-up did not include enough
fillers, if those fillers did not resemble the suspect, or if a private actor spoke
with the witness about the identification. Armed with that and similar
information, defendants could request and receive a hearing.
The hearing would encompass system and estimator variables upon a
showing of some suggestiveness that defendant can support. For various
reasons, estimator variables would no longer be ignored in the court’s analysis
until it found that an identification procedure was impermissibly suggestive.
First, broader hearings will provide more meaningful deterrence. To the extent
officers wish to avoid a pretrial hearing, they must avoid acting in a suggestive
manner. Second, more extensive hearings will address reliability with greater
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