The opinion of the court was delivered by: Coleman, J.
On appeal from and certification to the Superior Court, Appellate Division.
This appeal involves a rape and robbery in which a cross-racial identification was made of defendant as the perpetrator seven months after the offenses occurred. The identification of the perpetrator was the critical issue throughout the trial. The trial court denied defendant's request to have the jury instructed concerning the cross-racial nature of the identification. A majority in the Appellate Division agreed with the trial court. Judge Shebell Dissented, concluding that a reversal was warranted because the trial court should have given such a charge.
The novel issue presented is whether a cross-racial identification jury instruction should be required in certain cases before it is established that there is substantial agreement in the scientific community that cross-racial recognition impairment of eyewitnesses is significant enough to warrant a special jury instruction. Our study of the recommendations of a Court-appointed Task Force, judicial literature, and decisional law from other jurisdictions persuades us that there exists a reliable basis for a cross-racial identification charge. We hold that the trial court's failure to submit to the jury an instruction similar to the one requested by defendant requires a reversal of defendant's convictions.
On the night of August 28, 1992, D.S., a white female student then enrolled at Rutgers University in New Brunswick, was watching television in her basement apartment. While she was relaxing on the couch, an African-American male entered the brightly-lit apartment and demanded money from D.S., claiming that he was wanted for murder and that he needed funds to get to New York. After D.S. told the intruder that she had no money, he spotted her purse, rifled through it, and removed money and credit cards.
The intruder then placed his hand on D.S.'s leg, demanded that she be quiet and closed the window blinds. He led her by the arm into the brightly-lit kitchen and ordered her to remove her shorts. The intruder then vaginally penetrated D.S. from behind. Throughout the sexual assault, D.S. was facing the kitchen door with her eyes closed and hand over her mouth to avoid crying loudly.
Once the assault was over, D.S. faced her attacker who, after threatening her again, turned around and left the apartment. At the time of the second threat, D.S. was standing approximately two feet away from her assailant. The attacker made no attempt to conceal his face at any time. D.S. immediately called the New Brunswick Police Department after the intruder left the apartment.
The police dusted for fingerprints and took D.S.'s initial statement. D.S. described her assailant as an African-American male in his late 20's to early 30's, full-faced, about five feet five inches tall, with a medium build, mustache, and unkempt hair. She stated that the intruder was wearing a dirty gray button-down short-sleeved shirt, blue warm-up pants with white and red stripes, and a Giants logo on the left leg. D.S. was then taken to Roosevelt Hospital where rape samples were taken.
The next day, D.S. made a formal statement to the police in which she again described the intruder. Three days later, a composite sketch was drawn by an artist with her assistance. The following day at police headquarters, D.S. was shown many slides and photographs, including a photograph of defendant, in an unsuccessful attempt to identify her assailant.
On April 7, 1993, almost eight months after the crimes were committed, D.S. saw an African-American male across the street from her who she thought was her attacker. She spotted the man while she was standing on the corner of a street in New Brunswick waiting for the light to change. As the two passed on the street, D.S. studied the individual's face and gait. Believing that the man was her attacker, D.S. ran home and telephoned the police, giving them a description of the man she had just seen. Defendant was picked up by the New Brunswick police and taken to headquarters almost immediately.
Within fifteen minutes after seeing defendant on the street, D.S. viewed defendant in a "show-up" from behind a one-way mirror and immediately identified him as the man she had just seen on the street and as her attacker. Defendant was then arrested and, with his consent, saliva and blood samples were taken for scientific analysis.
No forensic evidence linking defendant to the offenses was presented during the trial. The police did not lift any fingerprints belonging to defendant from the apartment. D.S.'s Rape Crisis Intervention Kit, processed by the Middlesex County Rape Crisis Center at Roosevelt Hospital, was submitted to the New Jersey State Police Chemistry Biology Laboratory in Sea Girt for analysis. Testing of the victim's blood revealed that she was a secretor, meaning that she falls within the eighty percent of the population that secretes their blood type in all of their bodily fluids. When defendant's blood and saliva were tested by the same laboratory, it was determined that both the victim and defendant have type "A" blood, but defendant was found to be a non-secretor. That meant that although the rape kit revealed the presence of seminal fluid and spermatozoa, the specimens received from defendant could not be compared with the semen and spermatozoa found on the victim. In other words, the genetic markers found in the semen and spermatozoa could not be said to have come from defendant because he is a non-secretor. On the other hand, the genetic markers were consistent with the victim, who is a secretor.
Because of the nature of the crimes, the races of the victim and defendant, and the inability of the victim to identify defendant from his photograph, and because defendant was not positively identified until almost eight months after the date of the offenses, defense counsel sought a cross-racial identification jury charge. The following language was proposed:
"[Y]ou know that the identifying witness is of a different race than the defendant. When a witness who is a member of one race identifies a member who is of another race we say there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness's original perception and/or accuracy of a subsequent identification."
In support of that request, defendant cited the June 1992 New Jersey Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145 (1992) (Task Force Report).
The trial court denied the request because this Court had not yet adopted the Task Force Report and because there had been no expert testimony with respect to the issue of cross-racial identification. The trial court instead provided the jury with the Model Jury Charge on Identification. The jury convicted defendant of first-degree aggravated sexual assault, second-degree robbery, second-degree burglary, and third-degree terroristic threats.
In the Appellate Division, defendant argued that the case hinged entirely upon D.S.'s identification of him as her assailant and therefore, given the importance of the identification evidence, the trial court was obligated to provide the jury with explicit, fact-specific instructions on identification to guide it in its deliberations.
A majority of the panel believed that there was no error in the trial court's refusal to include an instruction on cross-racial identification. The majority noted that a review of cases from other jurisdictions supports the position that the charge either should not, or need not, be given. The majority was disinclined to require a cross-racial identification charge in view of the fact that the admissibility of expert testimony concerning cross-racial identification has not yet been endorsed in New Jersey. See State v. Gunter, 231 N.J. Super. 34, 40-48 (App. Div.) (requiring trial court to conduct Rule 8 hearing on reliability of expert testimony respecting factors that affect reliability of eyewitness perception and memory), certif. denied, 117 N.J. 81 (1989).
Judge Shebell Dissented, observing:
"A jury instruction that contains no direct reference to the hidden fires of prejudice and bias which may be stoked by an incident such as the sexual assault in question and fails to call the jury's attention to the problems of cross-racial identification, so well documented by the [New Jersey Supreme Court Task Force on Minority Concerns], denies ...