State v. Henderson

State v. Henderson: A Case that Forever Changed the Landscape of Eyewitness Identification Evidence in New Jersey

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Acknowledging that “eyewitness identification is the leading cause of wrongful convictions across the country,” five years ago the New Jersey Supreme Court adopted a revised framework for assessing the admissibility of eyewitness identification evidence. State v. Henderson, 208 N.J. 208 (2011). Prior to the Supreme Court’s decision in Henderson, the framework for the admissibility of identification evidence was set forth by the New Jersey Supreme Court in State v. Madison, 109 N.J. 223 (1988), which adopted the United States Supreme Court’s analysis in Manson v. Brathwaite, 432 U.S. 98 (1977).

The New Jersey Supreme Court changed that analysis in State v. Henderson, 208 N.J. 208, 287 (2011). In Henderson, the Court held that “to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification.” Id. at 288. That evidence must be tied to a system variable.

System variables are those variables that are within the State’s control. The following non-exhaustive list of system variables must be considered in order to determine whether a defendant has met this initial burden: (1) blind administration; (2) pre-identification instructions; (3) lineup construction; (4) feedback and recording confidence; (5) multiple viewings; (6) sequential versus simultaneous lineups; (7) composites; and (8) show-ups. Henderson, supra, 208 N.J. at 248-61, 289-90.

A pre-trial hearing is needed in order to determine the admissibility of an identification when an issue arises with respect to system variables. Henderson, supra, 208 N.J. at 289, 293. A full hearing is not required in every case where a system variable is questioned. If a defendant successfully meets the initial burden by offering some evidence of suggestiveness in the system variables, and a hearing is granted, the Court may stop the hearing at any time if it “concludes from the testimony that defendant’s initial claim of suggestiveness is baseless” and that “no other evidence of suggestiveness has been demonstrated by the evidence.” Id. at 290-91.

If instead, during the hearing, some actual proof of suggestiveness still remains, the State may introduce evidence to show that the proffered eyewitness identification is reliable. In doing so, the State may rely not only upon system variables, but also estimator variables.

Estimator variables are variables over which the State has no control. The following non-exhaustive list of estimator variables must be considered: (1) stress; (2) weapon focus; (3) duration; (4) distance and lighting; (5) witness characteristics; (6) perpetrator characteristics; (7) memory decay; (8) racial bias (i.e., cross-racial identification); (9) private actors; (10) speed of identification; (11) degree of attention; (12) accuracy of prior description of the criminal; (13) level of certainty demonstrated at the confrontation; and (14) time between the crime and the confrontation. Id. at 261-72, 291-92.

The ultimate burden rests on the defense to “prove a very substantial likelihood of irreparable misidentification.” State v. Madison, 109 N.J. 223, 239 (1998). To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables. Henderson, supra, 208 N.J. at 289.

An out-of-court identification should be suppressed “if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification.” Id. at 289.

If the court finds that the identification is admissible, it “should make factual findings at the pretrial hearings about relevant system and estimator variables to lay the groundwork for proper jury charges and to facilitate meaningful appellate review.” Id. at 295.

At trial, the court should give the jury “tailored jury instructions” based upon findings made at the hearing. Id. at 289.

The essential difference between the Henderson framework and the prior standard for the admissibility of an out-of-court identification is the inclusion of estimator variables in pre-trial hearings. Id. at 285-86, 293. Prior to Henderson, an identification procedure must have been found impermissibly suggestive before the court could consider any estimator variables. And even when such was considered in a reliability analysis, that consideration was limited to the five factors set forth by the United States Supreme Court in Manson v. Brathwaite, 432 U.S.98, 114 (1977).

Under the Henderson framework, the defense merely has to introduce some actual evidence of suggestiveness in order for the court to explore “all relevant system and estimator variables.” Id. at 218-19. The New Jersey Supreme Court added that “[t]he factors that both judges and juries will consider are not etched in stone[,]” and further noted that “[t]he [enumerated] factors are not exclusive. Nor are they intended to be frozen in time.” Id. at 219, 292.

Below are a few snippets from the opinion that are relevant to the overall reliability of an identification and are favorable to the defense:

  • The Court held that show-up administrators should instruct witnesses that the person they are about to view may or may not be the culprit and that they should not feel compelled to make an identification. Henderson, 208 N.J. at 261. The Court explained the dangers in failing to give proper pre-identification instructions: “[t]he failure to give proper [pre-identification] instructions can increase the risk of misidentification.” Id. at 250 (emphasis supplied).
  • The New Jersey Supreme Court recognized how crimes of short duration can sharply reduce the likelihood of an accurate identification. In Henderson, the Court said: “[T]he amount of time an eyewitness has to observe an event may affect the reliability of an identification.” Id. at 264. “ … [A] brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure.” Id.
  • “Cross-racial recognition continues to be a factor that can affect the reliability of an identification.” Henderson, 208 N.J. at 267.
  • “It is obvious that a person is easier to recognize when close buy, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification.” Henderson, supra, 208 N.J. at 264 (emphasis supplied).
  • “Characteristics like a witness’ age and level of intoxication can affect the reliability of an identification.” Henderson, supra, 208 N.J. at 265 (emphasis supplied).

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