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

State v. Henderson, 208 N.J. 208 (2011) – A Précis
By A.D.P.D. Joshua D. Sanders 1 - January 9, 2012
This is not intended to be a replacement for the actual Henderson opinion. Rather, it is intended to function
as a “cheat sheet” for quick access to various issues from the Henderson opinion. Bolded Language indicates
areas of the opinion that are open for interpretation on either a trial or appellate level. I have also included
some areas of the opinion that describe certain findings that are also open for interpretation. In rare instances,
I have followed a quote with advice as to a specific area where there is fertile ground. However, the excerpted
portions of the opinion largely speak for themselves.
“Two principal changes to the current system are needed to accomplish [remedying the problems with the
current Manson/Madison test]: first, the revised framework should allow all relevant system and estimator
variables to be explored and weighed at pretrial hearings when there is some actual evidence of
suggestiveness; and second, courts should develop and use enhanced jury charges to help jurors evaluate
eyewitness identification evidence.” Henderson, 208 N.J. at 288 (emphasis added)
“First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of
suggestiveness that could lead to a mistaken identification. See State v. Rodriquez, supra, 264 N.J. Super. at
269; State v. Ortiz, supra, 203 N.J.Super. at 522; cf. State v. Michaels, 136 N.J. 299, 320 (1994) (using same
standard to trigger pretrial hearing to determine if child-victim's statements resulted from suggestive or coercive
interview techniques). That evidence, in general, must be tied to a system -- and not an estimator -- variable.
But see Chen, supra (extending right to hearing for suggestive conduct by private actors).” Henderson, 208 N.J.
at 288-89 (emphasis added)
“If the trial court finds that the initial allegation is completely hollow, the judge can end the hearing absent any
other evidence of suggestiveness. In other words, if no evidence of suggestiveness is left in the case, there is
no need to explore estimator variables at the pretrial hearing. Also, trial courts always have the authority
to direct the mode and order of proofs, and they may exercise that discretion to focus pretrial hearings as
needed.” Henderson, 208 N.J. at 290-91 (emphasis added)
“Under those circumstances, the court need not permit the defendant or require the State to elicit more evidence
about estimator variables; that evidence would be reserved for the jury.” Henderson, 208 N.J. at 290-91
(emphasis added)
“Second, the State must then offer proof to show that the proffered eyewitness identification is reliable --
accounting for system and estimator variables -- subject to the following: the court can end the hearing at
any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless.”
Henderson, 208 N.J. at 289 (emphasis added)
“Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable
misidentification. See Manson, supra, 432 U.S. at 116; Madison, supra, 109 N.J. at 239 (same). To do so, a
defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant
evidence linked to system and estimator variables.n11” Henderson, 208 N.J. at 289 (emphasis added)
n11 A defendant, of course, may make a tactical choice not to explore an estimator variable pretrial, in
order to “save up” cross-examination for trial.
1 My appreciation to Public Defender Joseph Krakora, ADPD Mark Friedman, and Alison Perrone, Esq.,
ACDL-NJ, for their invaluable assistance with the creation of this document.
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