(Defendant), as part of [his/her] general denial of guilt, contends that the State has not
presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the
person who committed the alleged offense. The burden of proving the identity of the person who
committed the crime is upon the State. For you to find (defendant) guilty, the State must prove
beyond a reasonable doubt that this person is the person who committed the crime. (Defendant)
has neither the burden nor the duty to show that the crime, if committed, was committed by
someone else, or to prove the identity of that other person. You must determine, therefore, not
only whether the State has proved each and every element of the offense charged beyond a
reasonable doubt, but also whether the State has proved beyond a reasonable doubt that (this
defendant) is the person who committed it.
The State has presented testimony of [insert name of witness who identified defendant].
You will recall that this witness identified the defendant as the person who committed [insert the
offense(s) charged]. According to the witness, [his/her] identification of the defendant was
based upon the observations and perceptions that [he/she] made of the perpetrator at the time the
offense was being committed. It is your function to determine whether the identification of
(defendant) is reliable and believable or whether it is based on a mistake or for any reason is not
worthy of belief.1 You must decide whether it is sufficiently reliable evidence upon which to
conclude that (this defendant) is the person who committed the offense[s] charged. You should
consider the observations and perceptions on which the identification was based, and the
circumstances under which the identification was made. In deciding what weight, if any, to
give to the identification testimony, you may consider the following factors [cite appropriate
factors]:2
1
United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933 (1967); State v. Green, 86 N.J. 281, 291-293 (1981);
State v. Edmonds, 293 N.J. Super. 113, 118-119 (App. Div. 1996).
2
The first five factors listed below were enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972), and
United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940, as the factors to be considered in evaluating the likelihood of
misidentification. New Jersey courts employ the same analysis. State v. Madison, 109 N.J. 223, 239-240 (1988). See also State
v. Cherry, 289 N.J. Super. 503, 520 (App. Div. 1995).
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[If necessary or appropriate for purposes of clarity, the judge may comment on any
evidence relevant to any of the following factors]3
(1) The witness's opportunity to view the person who committed the offense at the time
of the offense.4
(2) The witness's degree of attention to the perpetrator at the time of the offense.5
(3) The accuracy of any description the witness gave prior to identifying the perpetrator.6
(4) The degree of certainty expressed by the witness in making the identification.7
3
See State v. Cromedy, 158 N.J. 112, 128 (1999) ("when identification is a critical issue in the case, the trial court is
obligated to give the jury discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how
to analyze and consider the trustworthiness of eyewitness identification"); State v. Green, 86 N.J. at 292, 293 (noting that model
charge could have been used as a guide, court holds that "the defendant had a right to expect that the appropriate guidelines
would be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness
of [the witness's] in-court identification"); but see State v. Robinson, 165 N.J. 32, 42-45 (2000) (reaffirming obligation under
Green to explain abstract identification factors in factual context of case, but holding that court need not necessarily summarize
weaknesses of State’s evidence); see generally, State v. Gartland, 149 N.J. 456, 475 (1997) (holding that jury charges must relate
the law to the specific facts in a case); State v. A. Gross, 121 N.J. 1 (1990) (same); State v. Concepcion, 111 N.J. 373 (1988)
(same).
4
Facts that may be relevant to this factor include the witness's ability to observe what he/she said he/she saw, the amount
of time during which the witness saw the perpetrator, the distance from which the witness saw the perpetrator, and the lighting
conditions at the time. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977); Neil v. Biggers, 409 U.S. at
200-201, 93 S.Ct. at 382; State v. Madison, 109 N.J. at 239.
Where supported by evidence that the victim might have difficulty perceiving, recalling, or relating the events, it may
be appropriate to add the following to factor (1): “. . . including the nature of the event being observed and the likelihood that the
witness would perceive, remember, and relate it correctly.” State v. Herrera, 187 N.J. 493, 509 (2006) (quoting State v. Ramirez,
817 P.2d 774, 781 (Utah 1991)).
5
Facts that may be relevant to this factor include whether the witness was merely a passing or casual observer or one
who would be expected to pay scrupulous attention to detail, whether the witness was involved in a direct confrontation with the
perpetrator, whether the witness was nervous, shocked or scared as a result of any confrontation with the perpetrator, and whether
the witness's attention was focused on or away from the perpetrator's features. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 200, 93 S.Ct. at 382-383; State v. Madison, 109 N.J. at 240.
6
Facts that may be relevant to this factor include whether any description the witness gave of the perpetrator after
observing the incident but before making the identification was accurate or inaccurate, whether the prior description provided
details or was just general in nature, whether the witness's testimony at trial was consistent with, or different from, his/her prior
description of the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97 S.Ct. at 2253; Neil v.Biggers, 409 U.S. at 200, 93
S.Ct. at 383; United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 240-241; State v. Edmonds,
293 N.J. Super. 113 (App. Div. 1996).
7
Facts that may be relevant to this factor include whether witnesses making the identification received inadvertent or
intentional confirmation, whether certainty was expressed at the time of the identification or some time later, whether intervening
events following the identification affected the witness’s certainty, and whether the identification was made spontaneously and
remained consistent thereafter. See N.J. Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup
Identification Procedures, April 18, 2001, at 2 (quoted in Herrera, 187 N.J. at 190); National Institute of Justice, Convicted by
Juries, Exonerated by Science, June 1996, at 24 (available at https://www.ndjrs.gov/pdffiles/dnaevid.pdf); Gary Wells & Amy
Bradfield, “Good, You Identified the Suspect,” 83 J. Applied Psychol. 360 (1998); Ramirez, 817 P.2d at 781. Whether the
witness made an identification quickly upon viewing the suspect, or whether the witness hesitated, may also be a relevant fact.
See S. Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78
J. Applied Psychol. 22, 23 (1993).
Other relevant facts include whether, at a time prior to making the identification of this defendant, the witness either
failed to identify the defendant or identified another person as the perpetrator. See Manson v. Brathwaite, 432 U.S. at 115, 97
S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at 383; Foster v. California, 394 U.S. 440, 442-443 & n.2, 89 S.Ct. 1127,
1128-1129 & n.2 (1969); United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940; State v. Madison, 109 N.J. at 241. Madison
cautions, with respect to an identification witness's "demonstrated certainty in his testimony," that "a witness's feeling of
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(5) The length of time between the witness's observation of the perpetrator during the
offense and the identification.8
(6) The circumstances under which the identification was made, including whether or not
it was the product of a suggestive procedure.9 In making this determination you may
consider the following circumstances:
[REFER TO CIRCUMSTANCES OF THE IDENTIFICATION PROCEDURE AS
NECESSARY FOR CLARITY, CHOOSING AS APPROPRIATE ANY OF THE
FOLLOWING FACTORS, OR ANY OTHER FACTORS RELATING TO
SUGGESTIVENESS, THAT ARE SUPPORTED BY THE EVIDENCE:]
• whether anything was said to the witness prior to viewing a photo array, line-up or
showup;10
• whether a photo array shown to the witness contained multiple photographs of the
defendant;11
• whether “all in the lineup but the [defendant] were known to the identifying witness”;12
• whether “the other participants in a lineup were grossly dissimilar in appearance to the
[defendant]”;13
• whether “only the [defendant] was required to wear distinctive clothing which the culprit
allegedly wore”;14
• whether "the witness is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail";15
confidence in the details of memory generally do not validly measure the accuracy of the recollection," and that "[i]n fact,
witnesses 'frequently become more confident of the correctness of their memory over time while the actual memory trace is
probably decaying.'" Id. at 241-242 (quoting W.LaFave and J.Israel, Criminal Procedure).
8
See Manson v. Brathwaite, 432 U.S. at 115-116, 97 S.Ct. at 2253-2254; Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. at
383; State v. Madison, 109 N.J. at 242.
9
See State v. Herrera, 187 N.J. 493 (2006), in which the New Jersey Supreme Court addressed the propriety of a “show-
up” identification; the majority opinion concluded that, while such a procedure is inherently suggestive, the identification
procedure employed there was reliable and did not result in a substantial likelihood of misidentification.
10
See State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995).
11
Id.
12
United States v. Wade, 388 U.S. at 233, 87 S.Ct. at 1935.
13
Id.
14
Id.
15
Id.
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• whether “the [defendant] is pointed out before or during a lineup”;16
• whether the witness’s identification was made spontaneously and remained consistent
thereafter;17
• whether the individual conducting the lineup either indicated to the witness that a suspect
was present or failed to warn the witness that the perpetrator may or may not be in the
procedure;18
• whether the witness was exposed to opinions, descriptions, or identifications given by
other witnesses, to photographs or newspaper accounts, or to any other information or
influence that may have affected the independence of his/her identification.19
[CHARGE IN ALL CASES:]
(7) Any other factor based on the evidence or lack of evidence in the case which you
consider relevant to your determination of whether the out-of-court identification was
reliable.
[(8) Jury should be charged on any other relevant factor present in the case20]
[IN THE APPROPRIATE CASE,21 CHARGE THE FOLLOWING FACTOR:]
(9) The fact that an identifying witness is not of the same race as the perpetrator and/or
defendant, and whether that fact might have had an impact on the accuracy of the
witness's original perception, and/or the accuracy of the subsequent identification.
16
Id., 87 S.Ct. at 1935-1936.
17
See Herrera, 187 N.J. at 509 (quoting State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)).
18
See N.J. Attorney General’s Guidelines, supra, Guideline I.B. (requiring administrator to instruct witness that
perpetrator may not be present); State v. Ledbetter, 881 A.2d 290 (Ct. 2005) (requiring jury instruction to that effect).
19
See Herrera, 187 N.J. at 509 (quoting Ramirez, 817 P.2d at 781 n. 2 (citing State v. Long, 721 P.2d 483, 494 n. 8 (Utah
1986)).
20
The list of factors enumerated in Biggers and Madison is not exhaustive. See State v. White, 158 N.J. 230, (1999) (in
declining to find plain error in identification charge, court notes that instruction went beyond model charge, "noting the
discrepancy ... between identifications made by different witnesses"). Additional relevant factors that should be brought to jury's
attention include the witness's inability to make an in-court identification if asked to do so while on the witness stand, any failure
on the part of the State to record a line-up or preserve a photo array, as bearing upon the probative value of the out-of-court
identification, see State v. Delgado, 188 N.J. 48, 63 (2006); State v. Earle, 60 N.J. 550, 552 (1972); State v. Peterkin, 226 N.J.
Super. 25, 46 (App. Div. 1988),and any discrepancies between identifications made by different witnesses, State v. White, 158
N.J. 230, 248.
21
An instruction that cross-racial identification is a factor to be considered “should be given only when ... identification is
a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it
independent reliability." State v. Cromedy, 158 N.J. at 132; see also State v. Romero, 186 N.J. 604 (2006) (granting certification
to consider whether failure to give cross-racial identification charge was reversible error in factual circumstances of that case).
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You should consider that in ordinary human experience, people may have greater
difficulty in accurately identifying members of a different race.22
[CHARGE IN ALL CASES:]
Unless the in-court identification resulted from the witness's observations or perceptions
of the perpetrator during the commission of the offense, it should be afforded no weight. The
ultimate issue of the trustworthiness of the identification is for you to decide.
If, after considering all the evidence, you determine that the State has not proven beyond
a reasonable doubt that (defendant) was the person who committed this offense [these offenses],
then you must find him/her not guilty. If, on the other hand, after considering all of the evidence,
you are convinced beyond a reasonable doubt that (defendant) was correctly identified, you will
then consider whether the State has proven each and every element of the offense[s] charged
beyond a reasonable doubt.
22
Cromedy holds that in order for the jury to determine the reliability of a cross-racial identification not corroborated by
independent evidence, the jury must be informed “of the potential risks associated with such identifications,” that the jury must
be instructed “about the possible significance of the cross-racial identification factor....” 158 N.J. at 132-33.
