State v. Henderson

Citation27 A.3d 872,208 N.J. 208
CourtUnited States State Supreme Court (New Jersey)
Decision Date24 August 2011
PartiesSTATE of New Jersey, Plaintiff–Appellant,v.Larry R. HENDERSON, Defendant–Respondent.

OPINION TEXT STARTS HERE

Deborah C. Bartolomey, Deputy Attorney General, argued the cause for appellant (Paula T. Dow, Attorney General of New Jersey, attorney).Joshua D. Sanders and Joseph E. Krakora, Assistant Deputy Public Defenders, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).Alison S. Perrone argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey.Barry C. Scheck, a member of the New York bar, argued the cause for amicus curiae Innocence Project, Inc. (Gibbons, attorneys; Mr. Scheck, Lawrence S. Lustberg, Newark, and Ellen P. Lubensky, on the briefs).Chief Justice RABNER delivered the opinion of the Court.

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                ¦Table of Contents¦
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                I.   Introduction                                                       877
                II.  Facts and Procedural History                                       879
                
     A.   Facts                                                         879
                     B.   Photo Identification and Wade   Hearing                       880
                     C.   Trial                                                         882
                     D.   Appellate Division                                            883
                     E.   Certification and Remand Order                                884
                
                III.  Proof of Misidentifications                                       885
                
                IV.  Current Legal Framework                                            889
                V.   Scope of Scientific Research                                       892
                VI.  How Memory Works                                                   894
                
     A.   System Variables                                              896
                
          1.  Blind Administration                                      896
                          2.  Pre-identification Instructions                           897
                          3.  Lineup Construction                                       897
                          4.  Avoiding Feedback and Recording Confidence                899
                          5.  Multiple Viewings                                         900
                          6.  Simultaneous v. Sequential Lineups                        901
                          7.  Composites                                                902
                          8.  Showups                                                   902
                
     B.   Estimator Variables
                
          1.  Stress                                                    904
                          2.  Weapon Focus                                              904
                          3.  Duration                                                  905
                          4.  Distance and Lighting                                     906
                          5.  Witness Characteristics                                   906
                          6.  Characteristics of Perpetrator                            907
                          7.  Memory Decay                                              907
                          8.  Race Bias                                                 907
                          9.  Private Actors                                            907
                          10. Speed of Identification                                   909
                
     C.   Juror Understanding                                           910
                     D.   Consensus Among Experts                                       911
                
                VII.  Responses to Scientific Studies                                   912
                VIII. Parties' Arguments                                                914
                IX.   Legal Conclusions                                                 916
                
     A.   Scientific Evidence                                           916
                     B.   The Manson  / Madison   Test Needs to be Revised              918
                     C.   Revised Framework                                             919
                     D.   Pretrial Hearing                                              922
                     E.   Trial                                                         924
                
                X.   Revised Jury Instructions                                          925
                
                XI.   Application                                                       926
                
                XII.  Retroactivity Analysis                                            926
                XIII. Conclusion                                                        928
                XIV.  Judgment                                                          928
                
                Appendix A Remand Order                                                 929
                
I. Introduction

In the thirty-four years since the United States Supreme Court announced a test for the admission of eyewitness identification evidence, which New Jersey adopted soon after, a vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory. It also calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Madison, 109 N.J. 223, 536 A.2d 254 (1988).

In this case, defendant claims that an eyewitness mistakenly identified him as an accomplice to a murder. Defendant argues that the identification was not reliable because the officers investigating the case intervened during the identification process and unduly influenced the eyewitness. After a pretrial hearing, the trial court found that the officers' behavior was not impermissibly suggestive and admitted the evidence. The Appellate Division reversed. It held that the officers' actions were presumptively suggestive because they violated guidelines issued by the Attorney General in 2001 for conducting identification procedures.

After granting certification and hearing oral argument, we remanded the case and appointed a Special Master to evaluate scientific and other evidence about eyewitness identifications. The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies. He later issued an extensive and very fine report, much of which we adopt.

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 broader approach, we decline to order pretrial hearings in every case, as opposed to cases in which there is some evidence of suggestiveness. We also reject a bright-line rule that would require suppression of reliable evidence any time a law enforcement officer missteps.

Second, the court system should develop enhanced jury charges on eyewitness identification for trial judges to use. We anticipate that identification evidence will continue to be admitted in the vast majority of cases. To help jurors weigh that evidence, they must be told about relevant factors and their effect on reliability. To that end, we have asked the Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft proposed revisions to the current model charge on eyewitness identification and address various system and estimator variables. With the use of more focused jury charges on those issues, there will be less need to call expert witnesses at trial. Trial courts will still have discretion to admit expert testimony when warranted.

The factors that both judges and juries will consider are not etched in stone. We expect that the scientific research underlying them will continue to evolve, as it has in the more than thirty years since Manson. For the same reason, police departments are not prevented from improving their practices as we learn more about variables that affect memory. New approaches,...

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