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

a-8-08.opn.html
We find that the scientific evidence considered at the remand hearing is
reliable. That evidence offers convincing proof that the current test for
evaluating the trustworthiness of eyewitness identifications should be revised.
Study after study revealed a troubling lack of reliability in eyewitness
identifications. From social science research to the review of actual police
lineups, from laboratory experiments to DNA exonerations, the record proves
that the possibility of mistaken identification is real. Indeed, it is now widely
known that eyewitness misidentification is the leading cause of wrongful
convictions across the country.
We are convinced from the scientific evidence in the record that
memory is malleable, and that an array of variables can affect and dilute
memory and lead to misidentifications. Those factors include system variables
like lineup procedures, which are within the control of the criminal justice
system, and estimator variables like lighting conditions or the presence of a
weapon, over which the legal system has no control. To its credit, the Attorney
General’s Office incorporated scientific research on system variables into the
guidelines it issued in 2001 to improve eyewitness identification procedures.
We now review both sets of variables in detail to evaluate the current
Manson/Madison test.
In the end, we conclude that the current standard for assessing
eyewitness identification evidence does not fully meet its goals. It does not offer
an adequate measure for reliability or sufficiently deter inappropriate police
conduct. It also overstates the jury’s inherent ability to evaluate evidence
offered by eyewitnesses who honestly believe their testimony is accurate.
Two principal steps are needed to remedy those concerns. First, when
defendants can show some evidence of suggestiveness, all relevant system and
estimator variables should be explored at pretrial hearings. A trial court can end
the hearing at any time, however, if the court concludes from the testimony that
defendant’s threshold allegation of suggestiveness is groundless. Otherwise, the
trial judge should weigh both sets of variables to decide if the evidence is
admissible.
Up until now, courts have only considered estimator variables if there
was a finding of impermissibly suggestive police conduct. In adopting this
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