IDENTIFICATION: IN-COURT IDENTIFICATION ONLY
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 witness’s
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.
Eyewitness identification evidence
must be scrutinized carefully. Human beings
have the ability to recognize other people from past experiences and to
identify them at a later time, but research has shown that there are risks of
making mistaken identifications. That research has focused on the nature of
memory and the factors that affect the reliability of eyewitness
identifications.
Human memory is not foolproof. Research has revealed that human memory is
not like a video recording that a witness need only replay to remember what
happened. Memory is far more complex.[2] The process of remembering consists of three
stages: acquisition -- the perception of the original event; retention -- the
period of time that passes between the event and the eventual recollection of a
piece of information; and retrieval -- the stage during which a person recalls
stored information. At each of these
stages, memory can be affected by a variety of factors.[3]
Relying
on some of the research that has been done, I will instruct you on specific
factors you should consider in this case in determining whether the eyewitness
identification evidence is reliable. In
evaluating this identification, you should consider the observations and
perceptions on which the identification was based, the witness’s ability to
make those observations and perceive events, and the circumstances under which
the identification was made. Although
nothing may appear more convincing than a witness’s categorical identification
of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good
faith, may be mistaken. Therefore, when
analyzing such testimony, be advised that a witness’s level of confidence,
standing alone, may not be an indication of the reliability of the
identification.[4]
In
deciding what weight, if any, to give to the identification testimony, you
should consider the following factors that are related to the witness, the
alleged perpetrator, and the criminal incident itself.[5] [choose
appropriate factors]:
(1) The Witness’s
Opportunity to View and Degree of Attention: In
evaluating the reliability of the identification, you should assess the
witness’s opportunity to view the person who committed the offense at the time
of the offense and the witness’s degree of attention to the perpetrator at the
time of the offense. In making this
assessment you should consider the following [choose appropriate factors from (a) through (g) below]:
(a)
Stress: Even
under the best viewing conditions, high levels of stress can reduce an
eyewitness’s ability to recall and make an accurate identification. Therefore, you should consider a witness’s level
of stress and whether that stress, if any,
distracted the witness or made it harder for him or her to identify the
perpetrator.[6]
(b) Duration: The amount of time an eyewitness has to
observe an event may affect the reliability of an identification. Although there is no minimum time required to
make an accurate identification, a
brief or fleeting contact is less likely to produce an accurate identification
than a more prolonged exposure to the perpetrator. In addition, time estimates given by witnesses
may not always be accurate because witnesses tend to think events lasted longer
than they actually did.[7]
(c) Weapon
Focus: You should consider whether the witness saw a
weapon during the incident and the duration of the crime. The presence of a weapon can distract the
witness and take the witness’s attention away from the perpetrator's face. As a result, the presence of a visible weapon
may reduce the reliability of a subsequent identification if the crime is of
short duration. In considering this factor, you should take into account the
duration of the crime because the longer the event, the more time the witness
may have to adapt to the presence of the weapon and focus on other details.[8]
(d) Distance: A person is easier to identify when close by. The greater the distance between an
eyewitness and a perpetrator, the higher the risk of a mistaken
identification. In addition, a witness’s
estimate of how far he or she was from the perpetrator may not always be
accurate because people tend to have difficulty estimating distances.[9]
(e) Lighting: Inadequate lighting can
reduce the reliability of an identification.
You should consider the lighting conditions present at the time of the
alleged crime in this case.[10]
(f) Intoxication: The influence
of alcohol can affect the reliability of an identification.[11] An identification made
by a witness under the influence of a high level of alcohol at the time of the
incident tends to be more unreliable than an identification by a witness who drank
a small amount of alcohol. [12]
(g) Disguises/Changed
Appearance: The perpetrator’s use of a disguise can affect
a witness’s ability both to remember and identify the perpetrator. Disguises like hats, sunglasses, or masks can
reduce the accuracy of an identification.[13] Similarly, if facial features are altered
between the time of the event and a later identification procedure, the
accuracy of the identification may decrease.[14]
(2) Prior
Description of Perpetrator: Another
factor for your consideration is the accuracy of any description the witness
gave after observing the incident and before identifying the perpetrator. Facts that may be relevant to this factor
include whether the prior description matched the person picked out later,
whether the prior description provided details or was just general in nature,
and whether the witness's testimony at trial was consistent with, or different
from, his/her prior description of the perpetrator. [Charge
if appropriate: You may also consider whether the witness did not identify
the defendant at a prior identification procedure or chose a different suspect
or filler.]
(3) Confidence
and Accuracy: You
heard testimony that (insert name of witness) expressed his/her level of
certainty that the person he/she selected is in fact the person who committed
the crime. As I explained earlier, a
witness’s level of confidence, standing alone, may not be an indication of the
reliability of the identification.[15] Although some research has found that highly
confident witnesses are more likely to make accurate identifications,
eyewitness confidence is generally an unreliable indicator of accuracy.[16]
(4)
Time Elapsed: Memories fade with
time. As a result, delays between the
commission of a crime and the time an identification is made can affect the
reliability of the identification. In
other words, the more time that passes, the greater the possibility that a
witness’s memory of a perpetrator will weaken.[17]
(5) Cross-Racial
Effects: Research has shown that people may have greater difficulty in
accurately identifying members of a different race.[18] You should consider whether the fact that the
witness and the defendant are not of the same race may have influenced the
accuracy of the witness’s identification.
[ The jury
should also be charged on any other relevant factors in the case.]
You
may consider 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] Such information can affect the independent
nature and reliability of a witness’s identification and inflate the witness’s
confidence in the identification.
You
are also free to consider any other factor based on the evidence or lack of
evidence in the case that you consider relevant to your determination whether
the identification was reliable. Keep in
mind that the presence of any single factor or combination of factor(s),
however, is not an indication that a particular witness is incorrect. Instead, you may consider the factors that I
have discussed as you assess all of the circumstances of the case, including
all of the testimony and documentary evidence, in determining whether a
particular identification made by a witness is accurate and thus worthy of your
consideration as you decide whether the State has met its burden to prove
identification beyond a reasonable doubt.
If you determine that the in-court identification resulted from the
witness's observations or perceptions of the perpetrator during the commission
of the offense, you may consider that evidence and decide how much weight to give
it. If you instead decide that the
identification is the product of an impression gained at the in-court
identification procedure, the identification should be afforded no weight. The ultimate issue of the trustworthiness of
the identification is for you to decide.
If,
after considering all of 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.
[1] United States v. Wade, 388 U.S.
218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967); State
v. Green, 86 N.J. 281, 291-93 (1981); State v. Edmonds, 293 N.J.
Super. 113, 118-19 (App. Div. 1996).
[2] State
v. Henderson, 208 N.J. 208, 245 (2011).
[3] Id.
at 245-46.
[4] State
v. Romero, 191 N.J. 59, 76 (2007).
[5] Henderson,
supra, 208 N.J. at 247.
[6] Id.
at 261-62.
[8] Id.
at 262-63.
[9] Id.at
264.
[10] Ibid.
[11] If there
is evidence of impairment by drugs or other substances, the charge can be
modified accordingly.
[12] Henderson,
supra, 208 N.J. at 265.
[13] Id.
at 266.
[14] Ibid.
[15] Id.
at 254 (quoting Romero, supra, 191 N.J. at 76).
[16] Id.
at 253-55.
[17] Id.
at 267.
[18] This
instruction must be given whenever there is a cross-racial identification. Id. at 299 (modifying State v.
Cromedy, 158 N.J. 112, 132 (1999)).
[19] State
v. Chen, 208 N.J. 307 (2011).
