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

“Disguises and changes in facial features can affect a witness’ ability to remember and identify a perpetrator.”
Henderson, 208 N.J. at 266.
“Memories fade with time. And as the Special Master observed, memory decay “is irreversible”; memories
never improve. As a result, delays between the commission of a crime and the time an identification is made
can affect reliability. That basic principle is not in dispute.” Henderson, 208 N.J. at 267.
“Cross-racial recognition continues to be a factor that can affect the reliability of an identification.”
Henderson, 208 N.J. at 267.
“More recently in Romero, supra, this Court held that “there [was] insufficient data to support the conclusion
that, as a matter of due process, people of the same race but different ethnicity . . . require a Cromedy
instruction whenever they are identified by someone of a different ethnicity.” 191 N.J. at 71-72. Of the three
studies the Court reviewed, one included a small number of participants and two “did not test for the reliability
of identifications of Hispanics by non-Hispanics.” Id. at 70-71. The Court distinguished the dearth of social
scientific research in the field of cross-ethnic bias from “the convincing social science data demonstrating the
potential unreliability of cross-racial identifications.” See id. at 69. Henderson, 208 N.J. at 284-285
.ETHNICITY STILL OPEN QUESTION
“To uncover relevant information about possible feedback from co-witnesses and other sources, we direct that
police officers ask witnesses, as part of the identification process, questions designed to elicit (a) whether the
witness has spoken with anyone about the identification and, if so, (b) what was discussed. That
information should be recorded and disclosed to defendants. We again rely on our supervisory powers under
Article VI, Section 2, Paragraph 3 of the State Constitution in requiring those steps. See Delgado, supra, 188
N.J. at 63.” Henderson, 208 N.J. at 270-271 (emphasis added).
Based on the record, we find that non-State actors like co-witnesses and other sources of information can
affect the independent nature and reliability of identification evidence and inflate witness confidence -- in the
same way that law enforcement feedback can. As a result, law enforcement officers should instruct witnesses
not to discuss the identification process with fellow witnesses or obtain information from other sources.”
Henderson, 208 N.J. at 270-271 (emphasis added); see also State v. Chen, 208 N.J. 307 (2011).
“The Special Master also noted that the speed with which a witness makes an identification can be a reliable
indicator of accuracy. The State agrees. (Although the factor is not a pure system or estimator variable, we
include it at this point for convenience.)” Henderson, 208 N.J. at 271.
“Because of the lack of consensus in the scientific community, we make no finding on this issue. To the extent
speed is relevant in any event, researchers also caution that it may only be considered if the lineup is fair and
unbiased. Henderson, 208 N.J. at 271-72.
“[T]he amount of time an eyewitness has to observe an event may affect the reliability of an identification. The
Special Master found that “while there is no minimum time required to make an accurate identification, a brief
or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure.”
Henderson, 208 N.J. at 264.
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