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

a-8-08.opn.html
“say that under all the circumstances of this case there is ‘a very substantial
likelihood of irreparable misidentification.’” Id. at 116, 97 S. Ct. at 2254, 53 L.
Ed. 2d at 155 (citing Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967,
971, 19 L. Ed.2d 1247, 1253 (1968)). “Short of that,” the Court noted, the
“evidence is for the jury to weigh.” Ibid.
This Court applied the same test in Madison. Two months after an armed
robbery, a detective administering a photo lineup showed a victim twenty-four
black-and-white photographs containing at least one photo of the defendant.
Madison, supra, 109 N.J. at 225. Next, the detective showed the victim an
additional thirty-eight color photographs, “thirteen or fourteen of which
depicted defendant as the center of attention at a birthday celebration held in
his honor.” Id. at 235.
The Court found the identification procedure “impermissibly suggestive”
based on “the sheer repetition of defendant’s picture.” Id. at 234. It then
remanded to the trial court to evaluate, under the second prong, “whether the
identification[] . . . had an independent source” that could outweigh the
substantial suggestiveness of the process. See id. at 245.
Since Madison, this Court, on occasion, has refined the Manson/Madison
framework. In Cromedy, supra, the Court examined numerous social science
studies showing that identifications are less reliable when the witness and
perpetrator are of different races. 158 N.J. at 121. In response, the Court held
that jury instructions on the reliability of cross-racial identifications are
necessary when “identification is a critical issue in the case” and there is no
independent evidence corroborating the identification. Id. at 132.
More recently in Romero, supra, the Court recognized that “[j]urors likely
will believe eyewitness testimony ‘when it is offered with a high level of
confidence, even though the accuracy of an eyewitness and the confidence of
that witness may not be related to one another at all.’” 191 N.J. at 75 (quoting
Watkins, supra, 449 U.S. at 352, 101 S. Ct. at 661, 66 L. Ed. 2d at 558 (Brennan,
J., dissenting)). The Court cited “social science research noting the fallibility of
eyewitness identifications” and directed that juries be instructed as follows in
eyewitness identification cases:
Although nothing may appear more
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