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

“We find that feedback affects the reliability of an identification in that it can distort memory, create a false
sense of confidence, and alter a witness’ report of how he or she viewed an event.” Henderson, 208 N.J. at 255.
“Thus, both mugshot exposure and mugshot commitment can affect the reliability of the witness’ ultimate
identification and create a greater risk of misidentification. As a result, law enforcement officials should attempt
to shield witnesses from viewing suspects or fillers more than once.” Henderson, 208 N.J. at 256.
“As research in this field [sequential v. simultaneous] continues to develop, a clearer answer may emerge. For
now, there is insufficient, authoritative evidence accepted by scientific experts for a court to make a finding in
favor of either procedure. As a result, we do not limit either one at this time.” Henderson, 208 N.J. at 257-58.
“Without more accepted research, courts cannot make a finding on the effect the process of making a composite
has on a witness. We thus do not limit the use of composites in investigations.” Henderson, 208 N.J. at 259.
“Thus, the record casts doubt on the reliability of showups conducted more than two hours after an event,
which present a heightened risk of misidentification. As with lineups, showup administrators should instruct
witnesses that the person they are about to view may or may not be the culprit and that they should not feel
compelled to make an identification. That said, lineups are a preferred identification procedure because we
continue to believe that showups, while sometimes necessary, are inherently suggestive.” Henderson, 208 N.J.
at 261.
Findings – Estimantor Variables
“We find that high levels of stress are likely to affect the reliability of eyewitness identifications. There is no
precise measure for what constitutes “high” stress, which must be assessed based on the facts presented in
individual cases.” Henderson, 208 N.J. at 262.
“Thus, when the interaction is brief, the presence of a visible weapon can affect the reliability of an
identification and the accuracy of a witness’ description of the perpetrator.” Henderson, 208 N.J. at 263.
“When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away
from the culprit. “Weapon focus” can thus impair a witness’ ability to make a reliable identification and
describe what the culprit looks like if the crime is of short duration.” Henderson, 208 N.J. at 262-63.
“Not surprisingly, the amount of time an eyewitness has to observe an event may affect the reliability of an
identification.” Henderson, 208 N.J. at 264.
“It is obvious that a person is easier to recognize when close by, and that clarity decreases with distance. We
also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a
perpetrator and poor lighting conditions can diminish the reliability of an identification.” Henderson, 208 N.J.
at 264.
“Characteristics like a witness’ age and level of intoxication can affect the reliability of an identification.”
Henderson, 208 N.J. at 265.
“Thus, the data about memory and older witnesses is more nuanced, according to the scientific literature. In
addition, there was little other testimony at the hearing on the topic. Based on the record before us, we cannot
conclude that a standard jury instruction questioning the reliability of identifications by all older eyewitnesses
would be appropriate for use in all cases.” Henderson, 208 N.J. at 266.
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