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

a-8-08.opn.html
care and better reflect how memory works. Suggestiveness can certainly taint
an identification, which justifies examining system variables. The same is true
for estimator variables like high stress, weapon-focus, and own-race bias.
Because both sets of factors can alter memory and affect eyewitness
identifications, both should be explored pretrial in appropriate cases to reflect
what Manson acknowledged: that “reliability is the linchpin in determining the
admissibility of identification testimony.” Manson, supra, 432 U.S. at 114, 97 S.
Ct. at 2253, 53 L. Ed. 2d at 154.
But concerns about estimator variables alone cannot trigger a pretrial
hearing; only system variables would. This approach differs from the procedure
endorsed by the Special Master and proposed by defendant and amici, which
would essentially require pretrial hearings in every case involving eyewitness
identification evidence. Several reasons favor the approach we outline today.
First, we anticipate that eyewitness identification evidence will likely not be
ruled inadmissible at pretrial hearings solely on account of estimator variables.
For example, it is difficult to imagine that a trial judge would preclude a witness
from testifying because the lighting was “too dark,” the witness was “too
distracted” by the presence of a weapon, or he or she was under “too much”
stress while making an observation. How dark is too dark as a matter of law?
How much is too much? What guideposts would a trial judge use in making
those judgment calls? In all likelihood, the witness would be allowed to testify
before a jury and face cross-examination designed to probe the weaknesses of
her identification. Jurors would also have the benefit of enhanced instructions
to evaluate that testimony -- even when there is no evidence of suggestiveness
in the case. As a result, a pretrial hearing triggered by, and focused on,
estimator variables would likely not screen out identification evidence and
would largely be duplicated at trial.
Second, courts cannot affect estimator variables; by definition, they relate to
matters outside the control of law enforcement. More probing pretrial hearings
about suggestive police procedures, though, can deter inappropriate police
practices.
Third, as demonstrated above, suggestive behavior can distort various other
factors that are weighed in assessing reliability. That warrants a greater pretrial
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