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

a-8-08.opn.html
Other federal and state courts have also recognized the usefulness of expert
testimony relating to eyewitness identification. See, e.g., Bartlett, supra, 567 F.
3d at 906; Brownlee, supra, 454 F. 3d at 141-44; Chapple, supra, 660 P. 2d at
1220; McDonald, supra, 690 P. 2d at 721; Benn, supra, 978 A. 2d at 1270;
LeGrand, supra, 867 N.E. 2d at 377-79; Copeland, supra, 226 S.W. 3d at 300;
Clopten, supra, 223 P. 3d at 1108.
We anticipate, however, that with enhanced jury instructions, there will be
less need for expert testimony. Jury charges offer a number of advantages: they
are focused and concise, authoritative (in that juries hear them from the trial
judge, not a witness called by one side), and cost-free; they avoid possible
confusion to jurors created by dueling experts; and they eliminate the risk of an
expert invading the jury’s role or opining on an eyewitness’ credibility. See
United States v. Hall, 165 F.3d 1095, 1119-20 (7th Cir.) (Easterbrook, J.,
concurring), cert. denied, 527 U.S. 1029, 119 S. Ct. 2381, 144 L. Ed.2d 784
(1999). That said, there will be times when expert testimony will benefit the
trier of fact. We leave to the trial court the decision whether to allow expert
testimony in an individual case.
Finally, in rare cases, judges may use their discretion to redact parts of
identification testimony, consistent with Rule 403. For example, if an
eyewitness’ confidence was not properly recorded soon after an identification
procedure, and evidence revealed that the witness received confirmatory
feedback from the police or a co-witness, the court can bar potentially distorted
and unduly prejudicial statements about the witness’ level of confidence from
being introduced at trial.
X. Revised Jury Instructions
To help implement this decision, we ask the Criminal Practice Committee
and the Committee on Model Criminal Jury Charges to draft proposed revisions
to the current charge on eyewitness identification and submit them to this
Court for review before they are implemented. Specifically, we ask them to
consider all of the system and estimator variables in section VI for which we
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