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

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a-8-08.opn.html DECIDED August 24, 2011 Chief Justice Rabner PRESIDING OPINION BY Chief Justice Rabner CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY CHECKLIST MODIFIED AND AFFIRMED/ REMANDED CHIEF JUSTICE RABNER X JUSTICE LONG X JUSTICE LaVECCHIA X JUSTICE ALBIN X JUSTICE RIVERA-SOTO X JUSTICE HOENS X TOTALS 6 http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]
a-8-08.opn.html 1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). 2 The prosecution played a tape of Clark’s statement at trial as well. It placed Henderson at the apartment but largely exculpated him. According to the record, the parties acknowledged that references in the statement to a co-defendant, namely Henderson, would have to be redacted under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Defense counsel did not seek redaction, though, specifically because the court had admitted the photo lineup and because of the tape’s exculpatory nature. 3 After defendant’s conviction, this Court decided State v. Romero, 191 N.J. 59, 76 (2007), which held that jurors are to be warned that “a witness’s level of confidence, standing alone, may not be an indication of the reliability of the identification.” 4 Defendant was still in prison on September 17, 2009, when the remand proceedings began. Through counsel, he waived his right to appear. Defendant was paroled on November 30, 2009, after which he again waived his appearance. 5 This book was published after the remand hearing, and a part was submitted to the Court and addressed by the parties. The book analyzes the first 250 DNA exoneration cases in the United States, and its author reviewed the full trial record in most of those matters. See Garrett, supra, at 7. 6 In Marquez, supra, the Connecticut Supreme Court concluded that “scientific literature . . . with respect to eyewitness identification procedures is far from universal or even well established, and that the research is in great flux.” 967 A. 2d at 77. Marquez considered six scientific articles and reports in reaching that conclusion, id. at 72-78, including an Illinois field study that has been strongly criticized, see id. at 75 & n.24; see also Daniel L. Schacter et al., Policy Forum: Studying Eyewitness Investigations in the Field, 32 Law & Hum. Behav. 3 (2008). The more extensive record presented and tested on remand provides a stronger basis for an assessment of eyewitness identification research. 7 This section focuses only on post-identification confidence. Metaanalysis shows that eyewitness confidence in the ability to make an identification before viewing a lineup does not correlate with accuracy. See Brian L. Cutler & Steven D. Penrod, Forensically Relevant Moderators of the Relation Between Eyewitness Identification Accuracy and Confidence, 74 J. Applied Psychol. 650, 652 (1989). 8 We do not consider the disputed Illinois field study, see Sheri H. Mecklenburg, Ill. Police Dep’t, Report to the Legislature of the State http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]
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Criminal Litigation Track State v H
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What was Henderson All About? • H
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“Human memory is not foolproof. R
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Non-exhaustive list of system varia
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Blind Lineup Procedures prevent: Ve
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Witness Instructions • Who scored
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Lineup Construction. Did the array
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The Perpetrator was Described as a
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Feedback to Witnesses • Wells and
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Other studies by Wells and his stud
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A Problem: Confidence malleability.
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Showups. •Did the police perform
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Private Actors. •Private Actors =
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Non-exhaustive list of estimator va
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Stress • Identification accuracy
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Weapon Focus ID accuracy is reduced
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Duration • Witnesses frequently o
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Distance • IMPORTANT STUDY: Loftu
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Distance 100 Feet
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Distance 20 Feet
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Distance 271 Feet
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Characteristics of Perpetrator. Was
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Disguise and Identification accurac
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Common belief: Memory Decay
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First, Let’s Identify What Race R
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OWN-RACE BIAS Meissner & Brigham (2
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Must Add: The Court specifically ad
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State v. Henderson, 208 N.J. 208 (2
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4. Distance and Lighting. How close
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Trial “Expert testimony may also
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“Disguises and changes in facial
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a-8-08.opn.html eyewitness identifi
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a-8-08.opn.html an identification i
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a-8-08.opn.html Barry C. Scheck, a
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a-8-08.opn.html XII. Retroactivity
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a-8-08.opn.html broader approach, w
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a-8-08.opn.html Harper slumped over
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a-8-08.opn.html your selection. It
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a-8-08.opn.html said that he “rea
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a-8-08.opn.html 7.2. Defendant appe
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a-8-08.opn.html holds a Ph.D., and
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a-8-08.opn.html court failed to ins
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a-8-08.opn.html experiments, Dr. Pe
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a-8-08.opn.html Applied Cognitive P
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a-8-08.opn.html o.b., 135 N.J. 3 (1
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a-8-08.opn.html convincing than a w
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a-8-08.opn.html reviewed journals.
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a-8-08.opn.html are tied to an incr
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a-8-08.opn.html We review each of t
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a-8-08.opn.html The consequences ar
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Page 163 and 164: Overview State v Henderson, decide
Page 165 and 166: Issues and Authorities Involved U.
Page 167 and 168: CHANGES WROUGHT New vocabulary: Sy
Page 169 and 170: Henderson Holding Henderson has ma
Page 171 and 172: RECORDING & DOCUMENTATION REQUIREME
Page 173 and 174: RECORDING & DOCUMENTATION Document
Page 175 and 176: AG GUIDELINES STEP 1: Determine wh
Page 177 and 178: AG GUIDELINES STEP 3: Showing the
Page 179 and 180: Sequential vs. Simultaneous • SEQ
Page 181 and 182: TRIAL PROCEDURES & EVIDENTIARY ISSU
Page 183 and 184: Text of New Court Rules
Page 185 and 186: Estimator Variables 1. Stress. Did
Page 187 and 188: Estimator Variables 7. Memory deca
Page 189 and 190: Important points for litigation 1)
Page 191 and 192: Identification: In-Court and Out-of
Page 193 and 194: ESTIMATOR VARIABLES 1. Stress. Did
Page 195 and 196: Hon. Lisa Rose, J.S.C. Judge Rose t
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