IDENTIFICATION:
IN-COURT AND OUT-OF-COURT IDENTIFICATIONS 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 this defendant guilty, the
State must prove beyond a reasonable doubt that this defendant is the person
who committed the crime. The 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 proven each and every element of the offense charged beyond a
reasonable doubt, but also whether the State has proven beyond a reasonable
doubt that this defendant is the person who committed it.
The State has presented the
testimony of [insert name of witness who identified defendant]. You will recall that this witness identified
the defendant in court as the person who committed [insert the offense(s)
charged]. The State also presented
testimony that on a prior occasion before this trial, this witness identified
the defendant as the person who committed this offense [these offenses]. 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 the
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]
If
you determine that the out-of-court identification is not reliable, you may
still consider the witness’s in-court identification of the defendant if you
find that it resulted from the witness’s observations or perceptions of the
perpetrator during the commission of the offense, and that the identification
is reliable. If you find that the
in-court identification is the product of an impression gained at the
out-of-court identification procedure, it should be afforded no weight. The ultimate question of the reliability of
both the in-court and out-of-court identifications is for you to decide.[5]
To decide whether the
identification testimony is sufficiently reliable evidence to conclude that
this defendant is the person who committed the offense[s] charged, you should
evaluate the testimony of the witness in light of the factors for considering
credibility that I have already explained to you. In addition, you should consider the following
factors that are related to the witness, the alleged perpetrator, and the
criminal incident itself.[6] In particular, you should consider [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.[7]
(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.[8]
(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.[9]
(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.[10]
(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.[11]
(f) Intoxication: The influence of alcohol
can affect the reliability of an identification.[12] 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. [13]
(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.[14] Similarly, if facial features are altered
between the time of the event and a later identification procedure, the
accuracy of the identification may decrease.[15]
(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.[16] 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.[17]
(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.[18]
(5) Cross-Racial
Effects: Research has shown that people
may have greater difficulty in accurately identifying members of a different
race.[19] 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 any 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]:[20]
(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.[21] 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.[22]
(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. [23]
[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 risk 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.[24]
[CHARGE
(a) and (b) IN EVERY CASE IN WHICH THE POLICE CONDUCT AN IDENTIFICATION LINEUP
PROCEDURE][25]
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.[26]
[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.[27]
(b)
Instructions: You should consider what was or what was not
said to the witness prior to viewing a photo array.[28] 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.[29]
[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.[30]
[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.[31] 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 identifications were
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 or out-of-court identifications 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(s) is/are the product of an impression gained at the in-court
and/or out-of-court identification procedures, the identifications should be
afforded no weight. The ultimate issue
of the trustworthiness of an identification is for you to decide.
If, after consideration of
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).
[5] Wade, supra, 388 U.S.
at 229-32, 241, 87 S. Ct. at 1933-35, 1940, 18 L. Ed. 2d at
1158-60, 1165 (manner in which lineup or other identification procedure
conducted relevant to reliability of out-of-court identification and in-court
identification following out-of-court identification, and jury's credibility
determinations).
[12] If there is evidence of impairment by
drugs or other substances, the charge can be modified accordingly.
[19] 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)).
[20] 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.
[23] 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.”
[25] “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”).
[30] 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)).