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

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
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