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

a-8-08.opn.html
focus on system variables.
Fourth, we are mindful of the practical impact of today’s ruling. Because
defendants will now be free to explore a broader range of estimator variables at
pretrial hearings to assess the reliability of an identification, those hearings will
become more intricate. They will routinely involve testimony from both the
police and eyewitnesses, and that testimony will likely expand as more
substantive areas are explored. Also, trial courts will retain discretion to allow
expert testimony at pretrial hearings.
In 2009, trial courts in New Jersey conducted roughly 200 Wade hearings,
according to the Administrative Office of the Courts. If estimator variables
alone could trigger a hearing, that number might increase to nearly all cases in
which eyewitness identification evidence plays a part. We have to measure that
outcome in light of the following reality that the Special Master observed:
judges rarely suppress eyewitness evidence at pretrial hearings. Therefore, to
allow hearings in the majority of identification cases might overwhelm the
system with little resulting benefit.
We do not suggest that it is acceptable to sacrifice a defendant’s right to a fair
trial for the sake of saving court resources, but when the likely outcome of a
hearing is a more focused set of jury charges about estimator variables, not
suppression, we question the need for hearings initiated only by estimator
variables.
Appellate review does remain as a backstop to correct errors that may not be
caught at or before trial, and the enhanced framework may provide a greater
role in that regard in certain cases. If a reviewing court determines that
identification evidence should not have been admitted in accordance with the
above standards, it can reverse a conviction.
We also note that trial courts should make factual findings at pretrial
hearings about relevant system and estimator variables to lay the groundwork
for proper jury charges and to facilitate meaningful appellate review.
Finally, we do not adopt the analogy between trace evidence and eyewitness
identifications. To be sure, like traces of DNA or drops of blood, memories are
part of our being. By necessity, though, the criminal justice system collects and
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