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

a-8-08.opn.html
of Illinois: The Illinois Pilot Program on Sequential Double-Blind
Identification Procedures (2006), referred to supra at ___ n.5 (slip
op. at 43 n.5).
9 The State correctly notes that there is no way to know the precise number of
identifications that may have been suppressed at the trial court level, but even
the State conceded at oral argument that suppression “does not happen often.”
We also note that with the exception of one case reversed on appeal, we have
found no reported Appellate Division decision since 1977 that reversed a
conviction because the trial court failed to suppress identification evidence.
State v. Ford, 165 N.J. Super. 249 (1978), rev’d on dissent, 79 N.J. 136 (1979).
(The Special Master found one unreported Appellate Division decision, which
we do not cite consistent with Rule 1:36-3.)
10 We have no authority, of course, to modify Manson. The
expanded protections stem from the due process rights guaranteed
under the State Constitution. Compare N.J. Const. art. I, § 1 (“All
persons are by nature free and independent, and have certain natural
and unalienable rights, among which are those of enjoying and
defending life and liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety and happiness.”),
with U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any
person of life, liberty, or property, without due process of law.”); see
Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 239 (2008)
(“[W]e have, from time to time, construed Article 1, Paragraph 1 [of
the New Jersey Constitution] to provide more due process
protections than those afforded under the United States
Constitution.”); see also State v. Reid, 194 N.J. 386, 396-97 (2008)
(recognizing greater protection of individual rights under New Jersey
Constitution).
11 A defendant, of course, may make a tactical choice not to explore
an estimator variable pretrial, in order to “save up” crossexamination
for trial.
12 The Appellate Division directed that the matter be assigned to a
different judge on remand. See Henderson, supra, 397 N.J. Super. at
416. That issue is moot because the original trial judge has retired.
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