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

“The hearing would encompass system and estimator variables upon a showing of some suggestiveness
that defendant can support. For various reasons, estimator variables would no longer be ignored in the court's
analysis until it found that an identification procedure was impermissibly suggestive. First, broader
hearings will provide more meaningful deterrence. To the extent officers wish to avoid a pretrial hearing, they
must avoid acting in a suggestive manner. Second, more extensive hearings will address reliability with greater
care and better reflect how memory works. Suggestiveness can certainly taint an identification, which justifies
examining system variables. The same is true for estimator variables like high stress, weapon-focus, and ownrace
bias. Because both sets of factors can alter memory and affect eyewitness identifications, both should be
explored pretrial in appropriate cases to reflect what Manson acknowledged: that “reliability is the
linchpin in determining the admissibility of identification testimony.” Manson, supra, 432 U.S. at 114.”
Henderson, 208 N.J. at 293-94 (emphasis added)
“But concerns about estimator variables alone cannot trigger a pretrial hearing; only system variables
would.” Henderson, 208 N.J. at 293 (emphasis added)
“First, we anticipate that eyewitness identification evidence will likely not be ruled inadmissible at pretrial
hearings solely on account of estimator variables. For example, it is difficult to imagine that a trial judge
would preclude a witness from testifying because the lighting was “too dark,” the witness was “too distracted”
by the presence of a weapon, or he or she was under “too much” stress while making an observation. How dark
is too dark as a matter of law? How much is too much? What guideposts would a trial judge use in making those
judgment calls? In all likelihood, the witness would be allowed to testify before a jury and face crossexamination
designed to probe the weaknesses of her identification. Jurors would also have the benefit of
enhanced instructions to evaluate that testimony -- even when there is no evidence of suggestiveness in the case.
As a result, a pretrial hearing triggered by, and focused on, estimator variables would likely not screen out
identification evidence and would largely be duplicated at trial.” Henderson, 208 N.J. at 293-94 (emphasis
added)
“[A]s demonstrated above, suggestive behavior can distort various other factors that are weighed in assessing
reliability. That warrants a greater pretrial focus on system variables.” Henderson, 208 N.J. at 294.
“Because defendants will now be free to explore a broader range of estimator variables at pretrial hearings
to assess the reliability of an identification, those hearings will become more intricate. They will routinely
involve testimony from both the police and eyewitnesses, and that testimony will likely expand as more
substantive areas are explored. Also, trial courts will retain discretion to allow expert testimony at pretrial
hearings.” Henderson, 208 N.J. at 294.
“Appellate review does remain as a backstop to correct errors that may not be caught at or before trial, and the
enhanced framework may provide a greater role in that regard in certain cases. If a reviewing court determines
that identification evidence should not have been admitted in accordance with the above standards, it can
reverse a conviction.” Henderson, 208 N.J. at 295.
“We also note that trial courts should make factual findings at pretrial hearings about relevant system and
estimator variables to lay the groundwork for proper jury charges and to facilitate meaningful appellate review.”
Henderson, 208 N.J. at 295
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