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

4. Distance and Lighting. How close were the witness and perpetrator? What were the lighting conditions
at the time?
5. Witness Characteristics. Was the witness under the influence of alcohol or drugs? Was age a relevant
factor under the circumstances of the case?
6. Characteristics of Perpetrator. Was the culprit wearing a disguise? Did the suspect have different
facial features at the time of the identification?
7. Memory decay. How much time elapsed between the crime and the identification?
8. Race-bias. Does the case involve a cross-racial identification?
Some of the above estimator variables overlap with the five reliability factors outlined in Neil v. Biggers, supra,
409 U.S.at 199-200, which are:
9. Opportunity to view the criminal at the time of the crime.
10. Degree of attention.
11. Accuracy of prior description of the criminal.
12. Level of certainty demonstrated at the confrontation. Did the witness express high confidence at the
time of the identification before receiving any feedback or other information?
13. The time between the crime and the confrontation.
“The above factors are not exclusive. Nor are they intended to be frozen in time. We recognize that
scientific research relating to the reliability of eyewitness evidence is dynamic; the field is very different
today than it was in 1977, and it will likely be quite different thirty years from now. By providing the above
lists, we do not intend to hamstring police departments or limit them from improving practices. Likewise, we
do not limit trial courts from reviewing evolving, substantial, and generally accepted scientific research.
But to the extent the police undertake new practices, or courts either consider variables differently or entertain
new ones, they must rely on reliable scientific evidence that is generally accepted by experts in the community.
See Chun, supra, 194 N.J. at 91; Moore, supra, 188 N.J. at 206; Rubanick, supra, 125 N.J. at 432.” Henderson,
208 N.J. at 291-93 (emphasis added)
The factors that both judges and juries will consider are not etched in stone. We expect that the scientific
research underlying them will continue to evolve, as it has in the more than thirty years since Manson. For the
same reason, police departments are not prevented from improving their practices as we learn more about
variables that affect memory. New approaches, though, must be based on reliable scientific evidence that
experts generally accept. Henderson, 208 N.J. at 219.
Pretrial Hearing
“As stated above, to obtain a pretrial hearing, a defendant must present some evidence of suggestiveness.
Pretrial discovery, which this opinion has enhanced in certain areas, would reveal, for example, if a line-up did
not include enough fillers, if those fillers did not resemble the suspect, or if a private actor spoke with the
witness about the identification. Armed with that and similar information, defendants could request and receive
a hearing.” Henderson, 208 N.J. at 291-93 (emphasis added)
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