IDENTIFICATION: OUT-OF-COURT IDENTIFICATION ONLY Model Jury charge NJ Criminal cases
(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 that on a prior occasion before this trial, [insert
name of witness who identified defendant] identified (defendant) as the
person who committed [insert the offenses 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 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 from one
through five below]:
(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 photo or 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) made a statement at the time he/she identified
the defendant from a photo array/line-up concerning his/her level of certainty
that the person/photograph 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.]
In
evaluating the reliability of a witness’s identification, you should also
consider the circumstances under which the out-of-court identification was
made, and whether it was the result of a suggestive procedure. In that regard, you may consider everything that
was done or said by law enforcement to the witness during the identification
process. You should consider the
following factors: [Charge if
appropriate]:[19]
(1) Lineup Composition: A suspect should not stand out from other
members of the lineup. The reason is
simple: an array of look-alikes forces witnesses to examine their memory. In addition, a biased lineup may inflate a
witness’s confidence in the identification because the selection process seemed
so easy to the witness.[20] It is, of course, for you to determine whether
the composition of the lineup had any effect on the reliability of the
identification.
(2) Fillers: Lineups
should include a number of possible choices for the witness, commonly referred
to as “fillers.” The greater the number
of choices, the more likely the procedure will serve as a reliable test of the
witness’s memory. A minimum of six
persons or photos should be included in the lineup.[21]
(3) Multiple Viewings: When a witness
views the same person in more than one identification procedure, it can be difficult
to know whether a later identification comes from the witness's memory of the
actual, original event or of an earlier identification procedure. As a result, if a witness views an innocent
suspect in multiple identification procedures, the risk of mistaken
identification is increased. You may consider whether the witness viewed the
suspect multiple times during the identification process and, if so, whether that
affected the reliability of the identification.[22]
[CHARGE IN EVERY CASE IN WHICH THERE IS A
SHOWUP PROCEDURE]
(4) Showups: In this case, the witness
identified the defendant during a “showup,” that is, the defendant was the only
person shown to the witness at that time.
Even though such a procedure is suggestive in nature, it is sometimes necessary
for the police to conduct a “showup” or one-on-one identification
procedure. Although the benefits of a
fresh memory may balance the risks of undue suggestion, showups conducted more
than two hours after an event present a heightened risk of
misidentification. Also, police officers
must instruct witnesses that the person they are about to view may or may not
be the person who committed the crime and that they should not feel compelled
to make an identification. In
determining whether the identification is reliable or the result of an unduly
suggestive procedure, you should consider how much time elapsed after the witness
last saw the perpetrator, whether the appropriate instructions were given to
the witness, and all other circumstances surrounding the showup.[23]
[CHARGE (a) AND (b) IN EVERY CASE IN WHICH THE POLICE CONDUCT AN
IDENTIFICATION LINEUP PROCEDURE][24]
In
determining the reliability of the identification, you should also consider
whether the identification procedure was properly conducted.
(a) Double-blind: A lineup
administrator who knows which person or photo in the lineup is the suspect may
intentionally or unintentionally convey that knowledge to the witness. That increases the chance that the witness
will identify the suspect, even if the suspect is innocent. For that reason, whenever feasible, live lineups
and photo arrays should be conducted by an officer who does not know the
identity of the suspect.[25]
[CHARGE IF BLIND ADMINISTRATOR
IS NOT USED]
If a police
officer who does not know the suspect’s identity is not available, then the
officer should not see the photos as the witness looks at them. In this case, it is alleged that the person
who presented the lineup knew the identity of the suspect. It is also alleged that the police did/did
not compensate for that by conducting a procedure in which the officer did not
see the photos as the witness looked at them.
[RESUME MAIN CHARGE]
You
may consider this factor when you consider the circumstances under which the
identification was made, and when you evaluate the overall reliability of the
identification.[26]
(b) Instructions: You should consider what was or what was not
said to the witness prior to viewing a photo array.[27] Identification procedures should begin with
instructions to the witness that the perpetrator may or may not be in the array
and that the witness should not feel compelled to make an identification. The failure to give this instruction can
increase the risk of misidentification.
If you find that the police [did/did not] give this instruction to the
witness, you may take this factor into account when evaluating the
identification evidence.[28]
[CHARGE IF FEEDBACK IS AN ISSUE
IN THE CASE]
(c) Feedback: Feedback occurs when police officers,
or witnesses to an event who are not law enforcement officials, signal to
eyewitnesses that they correctly identified the suspect. That confirmation may reduce doubt and
engender or produce a false sense of confidence in a witness. Feedback may also falsely enhance a witness’s
recollection of the quality of his or her view of an event. It is for you to determine whether or not a
witness’s recollection in this case was affected by feedback or whether the
recollection instead reflects the witness’s accurate perception of the event.[29]
[RESUME MAIN CHARGE]
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.[30] 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 out-of-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 out-of-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 consideration of
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.
[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] The following factors consist of “the system … variables … for which
[the Court] found scientific support that is generally accepted by
experts.” Henderson, supra, 208 N.J.
at 298-99.
[22] Id. at 255-56. If either “mugshot exposure” (no
identification in first lineup/photo array, but later identification of someone
from the first array in second lineup/photo array) or “mugshot commitment”
(selection of person in lineup who was identified in previous photo array) are
part of the evidence, the jury should be instructed on the concepts implicated
by those terms without using the word “mugshot.” See Model Jury Charge
(Criminal) on “Identity-Police Photos.”
[23] Henderson,
supra, 208 N.J. at 259-61.
[24] “To help
jurors weigh that evidence, they must be told about relevant factors and their
effect on reliability.” Id. at 219 (asking the Criminal Practice
Committee and the Committee on Model Criminal Jury Charges to draft proposed
revisions to this charge “and address various system and estimator variables”).
[25] Id.
at 248-50.
[26] Ibid.
[27] See
State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995).
[28] Henderson,
supra, 208 N.J. at 250.
[29] Id.
at 253-55; see also State v. Herrera, 187 N.J. 493, 509
(2006) (quoting State v. Ramirez, 817 P.2d 774, 781 (Utah
1991) (citing State v. Long, 721 P.2d 483, 493 (Utah 1986)).
[30] State
v. Chen, 208 N.J. 307 (2011).