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

a-8-08.opn.html
o.b., 135 N.J. 3 (1994); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985).
At the hearing, if the court decides the procedure “was in fact impermissibly
suggestive,” it then considers the reliability factors. See Madison, supra, 109
N.J. at 232. The State then “has the burden of proving by clear and convincing
evidence that the identification[] . . . had a source independent of the policeconducted
identification procedures.” Id. at 245 (citing Wade, supra, 388 U.S.
at 240, 87 S. Ct. at 1939, 18 L. Ed 2d at 1164) (additional citation omitted).
Overall, the reliability determination is to be made from the totality of the
circumstances. Id. at 233 (citing Neil v. Biggers, supra, 409 U.S. at 199, 93 S. Ct.
at 382, 34 L. Ed. 2d at 411).
Manson, supra, intended to address several concerns: problems with the
reliability of eyewitness identification; deterrence; and the effect on the
administration of justice. 432 U.S. at 111-13, 97 S. Ct. at 2251-52, 53 L. Ed. 2d at
152-53. Underlying Manson’s approach are certain assumptions: that jurors can
detect untrustworthy eyewitnesses, see id. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d
at 155; and that the test would deter suggestive police practices, see id. at 112, 97
S. Ct. at 2252, 53 L. Ed. 2d at 152. As to the latter point, the Court adopted a
totality approach over a per se rule of exclusion to avoid “keep[ing] evidence
from the jury that is reliable and relevant.” Ibid.
Manson and Madison provide good examples for how the two-pronged test is
applied. In Manson, supra, an undercover narcotics officer, Trooper Glover,
observed a defendant during a drug buy. 432 U.S. at 100-01, 97 S. Ct. at 2245-
46, 53 L. Ed. 2d at 145-46. Glover did not know the person and described him
to backup officers after the transaction. Based on the description, one of the
officers left a photo of the defendant on Glover’s desk. Glover later identified
the defendant from the single photo. Id. at 101, 97 S. Ct. at 2246, 53 L. Ed. 2d at
145-46.
Although the Court recognized that “identifications arising from singlephotograph
displays may be viewed in general with suspicion,” it found that the
corrupting effect of the challenged identification did not outweigh Glover’s
ability to make an accurate identification. Id. at 116, 97 S. Ct. at 2254, 53 L. Ed.
2d at 155 (citation omitted). After assessing each of the five reliability factors,
the Court concluded that the identification was admissible because it could not
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