(Sept. 15, 2011) In an August 24, 2011, ruling, State v. Henderson, the New Jersey Supreme Court revised the state's test for evaluating the trustworthiness and admissibility of eyewitness identifications in criminal proceedings.
The due process clauses of the United States and New Jersey constitutions require evidence used in criminal trials to be reliable. In 1988, New Jersey established a test, based partly on a 1977 United States Supreme Court ruling, for evaluating eyewitness identifications that required courts to first determine if police identification procedures were impermissibly suggestive and, if so, to weigh certain reliability factors before admitting the testimony. Since that time, new social science research and multiple exonerations based on DNA evidence have highlighted that eyewitness testimony is susceptible to error.
In State v. Henderson, defendant Larry R. Henderson was convicted of reckless manslaughter and other charges based on the eyewitness testimony of one witness, James Womble. On the evening the crime took place, Womble had consumed alcohol and crack cocaine. Womble first identified Henderson in a photo array 13 days after the commission of the crime. During the identification procedure, Womble first said he could not make a final identification from the photo array, but after an officer told him to “do what you have to do and we'll be out of here,” Womble identified Henderson's photo. At trial, the court conducted a hearing to determine if Womble could testify under the state's 1988 test for admissibility. The trial court found there was not a substantial likelihood of misidentification and allowed the testimony. Henderson was convicted based on this testimony.
The intermediate appellate court reversed Henderson's conviction, finding that the investigating officers “consciously and deliberately intruded into the process for the purpose of assisting or influencing Womble's identification,” and ordered a new hearing on the testimony.
The New Jersey Supreme Court granted the state's petition for certification of the case. The Court appointed a special master to conduct a hearing to evaluate current scientific evidence about eyewitness identifications. In his report, the special master found that “the science abundantly demonstrates the many vagaries of memory coding, storage and retrieval; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications.” (Report of the Special Master 72-73 (June 18, 2010), New Jersey Courts website.) As to juries' ability to evaluate such testimony, he found that “distinguishing accurate from inaccurate eyewitnesses is uncertain at best and that laypersons often have little knowledge and mistaken intuitions about eyewitness accuracy.” (Id. at 74.) He recommended the state's test for the assessment of eyewitness reliability be modified in various ways.
The New Jersey Supreme Court largely adopted the special master's recommendations. The Court found that the 1988 standard for assessing eyewitness identifications fails to adequately measure reliability or to sufficiently deter inappropriate police conduct and overstates the jury's ability to evaluate evidence offered by eyewitnesses who are confident their testimony is accurate.
The Court set forth a new framework for evaluating the reliability of eyewitness testimony. Under the new framework, the defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification, based on such variables as whether the identification procedure is performed by an administrator who is unaware of where the suspect appears in the lineup or photo array; whether the administrator provided the witness neutral pre-identification instructions; whether the witness received feedback on the crime or the suspect before, during, or after the identification procedure; whether the administrator recorded the witness's level of confidence immediately, before feedback; and whether the witness initially made no choice or chose a different suspect.
If the defendant meets his burden of showing some evidence of suggestiveness, a pretrial hearing is to be held on whether the testimony is admissible. At this hearing, the state must offer evidence that the proffered eyewitness identification is reliable, fully accounting for the many variables that can affect reliability. The burden remains on the defendant to show a very substantial likelihood of irreparable misidentification, but if he does so, the court should suppress the identification evidence.
Should eyewitness evidence be admitted, the New Jersey Supreme Court stated that the jury should be instructed about the various factors that may affect the reliability of the identification. The Court directed that revised model criminal jury instructions on eyewitness identifications be drafted.
The Court remanded the Henderson case to the trial court for an expanded hearing on the admission of Womble's testimony and a determination of whether a new trial is warranted. (State v. Henderson, No. A-8-08 (N.J. Aug. 24, 2011).)