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

Trial
“Expert testimony may also be introduced at trial, but only if otherwise appropriate. The Rules of
Evidence permit expert testimony to “assist the trier of fact to understand the evidence or to determine a fact in
issue.” N.J.R.E. 702. Expert testimony is admissible if it meets three criteria: (1) the intended testimony must
concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of
the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony.” Henderson, 208 N.J. at 297.
“We anticipate, however, that with enhanced jury instructions, there will be less need for expert testimony.
Jury charges offer a number of advantages: they are focused and concise, authoritative (in that juries hear them
from the trial judge, not a witness called by one side), and cost-free; they avoid possible confusion to jurors
created by dueling experts; and they eliminate the risk of an expert invading the jury’s role or opining on an
eyewitness’ credibility. That said, there will be times when expert testimony will benefit the trier of fact. We
leave to the trial court the decision whether to allow expert testimony in an individual case.” Henderson, 208
N.J. at 297-98.
“Finally, in rare cases, judges may use their discretion to redact parts of identification testimony, consistent
with Rule 403. For example, if an eyewitness’ confidence was not properly recorded soon after an identification
procedure, and evidence revealed that the witness received confirmatory feedback from the police or a cowitness,
the court can bar potentially distorted and unduly prejudicial statements about the witness’ level of
confidence from being introduced at trial.” Henderson, 208 N.J. at 298.
Findings – System Variables
“We find that the failure to perform blind lineup procedures can increase the likelihood of misidentification.”
Henderson, 208 N.J. at 250.
“The failure to give proper pre-lineup instructions can increase the risk of misidentification” Henderson, 208
N.J. at 250.
“We find that courts should consider whether a lineup is poorly constructed when evaluating the
admissibility of an identification. When appropriate, jurors should be told that poorly constructed or biased
lineups can affect the reliability of an identification and enhance a witness’ confidence.” Henderson, 208 N.J.
at 252.
“The record is unclear as to whether the use of fillers that match a witness’ pre-lineup description is more
reliable than fillers that resemble an actual suspect (to the extent there is a difference between the two). Further
research may help clarify this issue.” Henderson, 208 N.J. at 252.
“Of course, all lineup procedures must be recorded and preserved in accordance with the holding in
Delgado, supra, 188 N.J. at 63, to ensure that parties, courts, and juries can later assess the reliability of the
identification.” Henderson, 208 N.J. at 252.
“Confirmatory feedback can distort memory. As a result, to the extent confidence may be relevant in
certain circumstances, it must be recorded in the witness' own words before any possible feedback. To
avoid possible distortion, law enforcement officers should make a full record -- written or otherwise -- of the
witness' statement of confidence once an identification is made. Even then, feedback about the individual
selected must be avoided.” Henderson, 208 N.J. at 254.
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