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

a-8-08.opn.html
have found scientific support that is generally accepted by experts, and to
modify the current model charge accordingly.
Although we do not adopt the sample charges offered by the Innocence
Project, we ask the Committees to examine their format and recommendations
with care. We also invite the Attorney General, Public Defender, and ACDL to
submit proposed charges and comments to the Committees.
We add a substantive point about the current charge for cross-racial
identification. In 1999, the Court in Cromedy directed that the charge be given
“only when . . . identification is a critical issue in the case, and an eyewitness’s
cross-racial identification is not corroborated by other evidence giving it
independent reliability.” Cromedy, supra, 158 N.J. at 132. Since then, the
additional research on own-race bias discussed in section VI.B.8, and the more
complete record about eyewitness identification in general, justify giving the
charge whenever cross-racial identification is in issue at trial.
Because of the widespread use the revised jury instructions will have in
upcoming criminal trials, we ask the Committees to present proposed charges
to the Court within ninety days.
XI. Application
We return to the facts of this case. After Womble, the eyewitness, informed
the lineup administrator that he could not make an identification from the final
two photos, the investigating officers intervened. They told Womble to focus
and calm down, and assured him that the police would protect him from
retaliation. “Just do what you have to do,” they instructed. From that exchange,
Womble could reasonably infer that there was an identification to be made, and
that he would be protected if he made it. The officers conveyed that basic
message to him as they encouraged him to make an identification.
The suggestive nature of the officers’ comments entitled defendant to a
pretrial hearing, and he received one. Applying the Manson/Madison test, the
trial judge admitted the evidence. We now remand to the trial court 12 for an
expanded hearing consistent with the principles outlined in this decision.
Defendant may probe all relevant system and estimator variables at the hearing.
http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]