27 A.3d 872 (N.J. 2011), State v. Henderson

• Citation: 27 A.3d 872, 208 N.J. 208
• Opinion Judge: RABNER, Chief Justice
• Party Name: STATE of New Jersey, Plaintiff-Appellant, v. Larry R. HENDERSON, Defendant-Respondent.
• Attorney: 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). Al...
• Judge Panel: For modification and affirmance/remandment — Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS— 6. Opposed — None. Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in the Court's Order.
• Case Date: August 24, 2011
• Court: United States State Supreme Court (New Jersey)

Page 872

27 A.3d 872 (N.J. 2011)

208 N.J. 208

STATE of New Jersey, Plaintiff-Appellant,

v.

Larry R. HENDERSON, Defendant-Respondent.

Supreme Court of New Jersey.

August 24, 2011

Argued Jan. 20, 2009.

Remanded Feb. 26, 2009.

Special Master's Report Filed June 21, 2010.

Reargued March 28, 2011.

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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).

OPINION

RABNER, Chief Justice

Table of Contents

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

Page 877 [208 N.J. 217]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 [208 N.J. 218] 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 Page 878 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, [208 N.J. 219] 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, though, must be based on reliable scientific evidence that experts generally accept. The changes outlined in this decision are significant because eyewitness identifications Page 879 bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts' ability to conduct fair trials. Ultimately, we believe that the framework described below will both protect the rights of [208 N.J. 220] defendants, by minimizing the risk of misidentification, and enable the State to introduce vital evidence. The revised principles in this decision will apply purely prospectively except for defendant Larry Henderson and defendant Cecilia Chen, the subject of a companion case also decided today. See State v. Chen, 207 N.J. 404, 25 A.3d 256 (2011). We remand defendant Henderson's case for a new pretrial hearing consistent with this opinion to determine the admissibility of the eyewitness evidence introduced at his trial. II. Facts and Procedural History A. Facts In the early morning hours of January 1, 2003, Rodney Harper was shot to death in an apartment in Camden. James Womble witnessed the murder but did not speak with the police until they approached him ten days later. Womble and Harper were acquaintances who occasionally socialized at the apartment of Womble's girlfriend, Vivian Williams. On the night of the murder, Womble and Williams brought in the New Year in Williams' apartment by drinking wine and champagne and smoking crack cocaine. Harper had started the evening with them but left at around 10:15 p.m. Williams also left roughly three hours later, leaving Womble alone in the apartment until Harper rejoined him at 2:00 to 2:30 a.m. Soon after Harper returned, two men...