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State of New Jersey v. Larry R. Henderson

August 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
LARRY R. HENDERSON, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at The opinion of the court was delivered by: Chief Justice Rabner

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

(A-8-08)(062218)

[NOTE: This is a companion case to State v. Cecelia X. Chen, also filed today.]

Argued January 20, 2009 -- Reargued March 28, 2011 -- Decided August 24, 2011

RABNER, C.J., writing for a unanimous Court.

In this appeal the Court considers the viability of the current legal standard for analyzing the reliability of eyewitness identifications.

Rodney Harper was shot to death in a Camden apartment early in the morning on January 1, 2003. James Womble was present when two men forcefully entered the apartment, seeking to collect money from Harper. Womble knew one of the men, co-defendant, George Clark, but the other man was a stranger. According to the State's evidence, Clark shot Harper while the stranger held a gun on Womble in a small, dark hallway. Thirteen days later, police showed Womble a photo array from which he identified defendant as the stranger. That identification lies at the heart of this decision.

The trial court conducted a pre-trial Wade hearing to determine the admissibility of Womble's identification of defendant. That hearing revealed that the identification procedure was presided over by a detective who was not a primary investigator in the case. Nonetheless, when Womble was unable to make a final identification, the two investigating officers intervened and encouraged him to "do what you have to do and we'll be out of here." Womble followed by identifying defendant. Womble never recanted the identification, but during the Wade hearing he testified that he felt as though Detective Weber was "nudging" him to choose defendant's photo, and that there was pressure to make a choice.

At the conclusion of the hearing, the trial court found that the officers' behavior was not impermissibly suggestive and ruled that evidence of the identification was admissible. The trial court applied the two-part Manson/Madison test to evaluate the admissibility of the eyewitness identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1998). The test requires courts to determine first if police identification procedures were impermissibly suggestive; if so, courts then weigh five reliability factors to decide if the identification evidence is nonetheless admissible. The court found that there was "nothing in this case that was improper, and certainly nothing that was so suggestive as to result in a substantial likelihood of misidentification at all." The court also noted that Womble displayed no doubts about his identification, that he had the opportunity to view defendant at the crime scene, and that Womble fixed his attention on defendant "because he had a gun on him."

At trial, additional evidence relevant to Womble's identification was adduced. This included Womble's testimony about his ingestion of crack cocaine and alcohol on the night of the shooting; that the lighting was dark in the hallway where Womble and defendant interacted; and that Womble remembered looking at the gun pointed at his chest. Womble also admitted that he smoked about two bags of crack cocaine each day from the time of the shooting until speaking with police ten days later. Womble also testified that when he first looked at the photo array, he did not see anyone he recognized. To make a final identification, Womble said that he "really had to search deep." He was nonetheless "sure" of his identification. Womble identified defendant from the witness stand.

Neither Clark nor defendant testified at trial. The primary evidence against defendant was Womble's identification and the detective's testimony about defendant's post-arrest statement. At the close of trial, the court relied on the existing model jury charge on eyewitness identification. Defendant did not object to the charge. The jury acquitted defendant of murder and aggravated manslaughter charges, and convicted him of reckless manslaughter, aggravated assault, and weapons charges. He was sentenced to an aggregate eleven-year term subject to a parole ineligibility period of almost six years.

The Appellate Division reversed, presuming that the identification procedure in this case was impermissibly suggestive under the first prong of the Manson/Madison test. The court remanded for a new Wade hearing to determine whether the identification was nonetheless reliable under the test's second prong. The panel anchored its finding to what it considered to be a material breach of the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures. Among other things, the Guidelines require that "whenever practical, the person conducting the photographic identification procedure should be someone other than the primary investigator assigned to the case." The panel found that the investigating officers "consciously and deliberately intruded into the process for the purpose of assisting or influencing Womble's identification of defendant." In such circumstances, the panel "conclude[d] that a presumption of impermissible suggestiveness must be imposed, and a new Wade hearing conducted."

The Supreme Court granted the State's petition for certification, 195 N.J. 521 (2008), and also granted leave to appear as amicus curiae to the Association of Criminal Defense Lawyers of New Jersey and the Innocence Project. In their briefs and oral argument, the parties and amici raised questions about possible shortcomings in the Manson/Madison test in light of recent scientific research. The Supreme Court remanded the case and appointed the Honorable Geoffrey Gaulkin, P.J.A.D. (retired and temporarily assigned on recall) to preside at the remand hearing as a Special Master to evaluate the scientific and other evidence about eyewitness identifications. The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies. The Special Master later issued an extensive and very fine report, much of which the Court adopts.

HELD: The current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury's ability to evaluate identification evidence. Two modifications to the standard are required. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. Second, the court system must develop enhanced jury charges on eyewitness identification for trial judges to use. Defendant is entitled to a new pretrial hearing consistent with this opinion to determine the admissibility of the eyewitness evidence introduced at his trial.

1. This Court previously has observed that eyewitness "[m]isidentification is widely recognized as the single greatest cause of wrongful convictions in this country." Most misidentifications stem from the fact that human memory is malleable; they are not the result of malice. An array of variables can affect and dilute eyewitness memory. The recent scientific studies that were examined in this record prove that the possibility of mistaken identification is real, and the consequences severe. (pp. 23-34)

2. The current standards for determining the admissibility of eyewitness identification evidence derive from the principles the United States Supreme Court set forth in Manson in 1977. New Jersey formally adopted Manson's framework in Madison. The Manson/Madison test entails a two step process. First, the court must decide whether the identification procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. (pp. 34-40)

3. Virtually all of the scientific evidence considered on remand emerged after Manson. Most research is conducted through controlled lab experiments. Research that has emerged in the years since Manson was decided reveals that an array of variables can affect and dilute memory and lead to misidentifications. The variables are divided into two categories: system variables, which are factors like lineup procedures that are within the control of the criminal justice system; and estimator variables, which are factors related to the witness, the perpetrator, or the event itself -like distance, lighting, or stress - over which the legal system has no control. The Court summarizes its findings for each of the system and estimator variables consistent with the proper standards for reviewing special-master reports and scientific evidence. Among the Court's findings on system variables are the following: where the identification procedures are administered by someone who knows the identity of the suspect there is an increased likelihood of misidentification; feedback by administrators affects the reliability of identification and should be avoided; and the record casts doubt on the reliability of showups, or single-person lineups conducted more than two hours after the event. Regarding some of the estimator variables, the Court finds that the reliability of an identification can be affected by: high levels of stress on the eyewitness; when the interaction is brief, the presence of a visible weapon; cross-racial recognition; and witness interaction with non-State actors like co-witnesses and other sources of information. In addition, the studies reveal generally that people do not intuitively understand all of the relevant scientific findings. As a result, there is a need to promote greater juror understanding of those issues. (pp. 40-92)

4. The remand hearing revealed that Manson/Madison does not adequately meet its stated goals: it does not provide a sufficient measure for reliability, it does not deter, and it overstates the jury's innate ability to evaluate eyewitness testimony. Remedying the problems with the current Manson/Madison test requires an approach that addresses its shortcomings: one that allows judges to consider all relevant factors that affect reliability in deciding whether an identification is admissible; that is not heavily weighted by factors that can be corrupted by suggestiveness; that promotes deterrence in a meaningful way; and that focuses on helping jurors both understand and evaluate the effects that various factors have on memory. Two principal changes to the current system are needed. First, the revised framework should allow all relevant system and estimator variables to be explored and weighed at pretrial hearings when there is some actual evidence of suggestiveness. Second, courts should develop and use enhanced jury charges to assist jurors in evaluating eyewitness identification evidence. Under our revised approach, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. The State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables. However, the court can end the hearing at any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless. The ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. If, after weighing the evidence presented, a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions. (pp. 103-122)

5. The Court directs that enhanced instructions be given to guide juries about the various factors that may affect the reliability of an identification in a particular case. Those instructions are to be included in the court's comprehensive jury charge at the close of evidence. In addition, instructions may be given during trial if warranted. Expert testimony may also be introduced at trial, but only if otherwise appropriate. The Court anticipates, however, that with enhanced jury instructions, there will be less need for expert testimony. To help implement this decision, the Court asks the Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft proposed revisions to the current charge on eyewitness identification and submit them to this Court for review before they are implemented. (pp. 122-128)

6. Returning to the facts of this case, the investigating officers intervened after Womble, the eyewitness, informed the lineup administrator that he could not make an identification from the final two photos. The officers conveyed a message that there was an identification to be made and they encouraged Womble to make one. The suggestive nature of the officers' comments entitled defendant to a pretrial hearing, and he received one in which the trial court applied the Manson/Madison test. The Court now remands to the trial court for an expanded hearing consistent with the principles outlined in this decision. If the trial court finds that the identification should not have been admitted, then the parties should present argument as to whether a new trial is needed. If Womble's identification was properly admitted, then defendant's conviction should be affirmed. (pp. 128-129)

7. The Court must determine whether the new rule should be applied retroactively. Applying the relevant factors, the Court determines that today's ruling will apply to future cases only, except for defendant Henderson and defendant Cecilia Chen, the subject of a companion case filed today. As to future cases, today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification. (pp. 129-132)

The judgment of the Appellate Division is MODIFIED and AFFIRMED, and the matter is REMANDED to the trial court for further proceedings consistent with the Court's opinion.

JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER's opinion.

Argued January 20, 2009 -- Remanded February 26, 2009 Special Master's Report Filed June 21, 2010 --Reargued March 28, 2011

CHIEF JUSTICE RABNER delivered the opinion of the Court.

Table of Contents

I. Introduction .......................................... 3

II. Facts and Procedural History .......................... 8

A. Facts ............................................. 8

B. Photo Identification and Wade Hearing ............. 10

C. Trial ............................................. 15

D. Appellate Division ................................ 19

E. Certification and Remand Order .................... 20

III. Proof of Misidentifications ........................... 23

IV. Current Legal Framework ............................... 34

V. Scope of Scientific Research .......................... 40

VI. How Memory Works ...................................... 46

A. System Variables .................................. 50

1. Blind Administration ......................... 51

2. Pre-identification Instructions .............. 53

3. Lineup Construction .......................... 54

4. Avoiding Feedback and Recording Confidence ... 57

5. Multiple Viewings ............................ 61

6. Simultaneous v. Sequential Lineups ........... 63

7. Composites ................................... 65

8. Showups ...................................... 67

B. Estimator Variables ............................... 70

1. Stress ....................................... 70

2. Weapon Focus ................................. 72

3. Duration ..................................... 74

4. Distance and Lighting ........................ 75

5. Witness Characteristics ...................... 76

6. Characteristics of Perpetrator ............... 78

7. Memory Decay ................................. 78

8. Race Bias .................................... 79

9. Private Actors ............................... 80

10. Speed of Identification ...................... 85

C. Juror Understanding ............................... 86

D. Consensus Among Experts ........................... 90

VII. Responses to Scientific Studies ...................... 92

VIII. Parties' Arguments ................................... 97

IX. Legal Conclusions .................................... 103

A. Scientific Evidence ............................... 103

B. The Manson/Madison Test Needs to be Revised ....... 106

C. Revised Framework ................................. 110

D. Pretrial Hearing .................................. 118

E. Trial ............................................. 122

X. Revised Jury Instructions ............................ 127

XI. Application .......................................... 128

XII. Retroactivity Analysis ............................... 129

XIII. Conclusion ........................................... 132

XIV. Judgment ............................................. 134 Appendix A Remand Order ................................. 135

I. Introduction

In the thirty-four years since the United States Supreme Court announced a test for the admission of eyewitness identification evidence, which New Jersey adopted soon after, a vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory. It also calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988).

In this case, defendant claims that an eyewitness mistakenly identified him as an accomplice to a murder. Defendant argues that the identification was not reliable because the officers investigating the case intervened during the identification process and unduly influenced the eyewitness. After a pretrial hearing, the trial court found that the officers' behavior was not impermissibly suggestive and admitted the evidence. The Appellate Division reversed. It held that the officers' actions were presumptively suggestive because they violated guidelines issued by the Attorney General in 2001 for conducting identification procedures.

After granting certification and hearing oral argument, we remanded the case and appointed a Special Master to evaluate scientific and other evidence about eyewitness identifications. The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies. He later issued an extensive and very fine report, much of which we adopt.

We find that the scientific evidence considered at the remand hearing is reliable. That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.

We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General's Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures. We now review both sets of variables in detail to evaluate the current Manson/Madison test.

In the end, we conclude that the current standard for assessing eyewitness identification evidence does not fully meet its goals. It does not offer an adequate measure for reliability or sufficiently deter inappropriate police conduct. It also overstates the jury's inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.

Two principal steps are needed to remedy those concerns. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. A trial court can end the hearing at any time, however, if the court concludes from the testimony that defendant's threshold allegation of suggestiveness is groundless. Otherwise, the trial judge should weigh both sets of variables to decide if the evidence is admissible.

Up until now, courts have only considered estimator variables if there was a finding of impermissibly suggestive police conduct. In adopting this broader approach, we decline to order pretrial hearings in every case, as opposed to cases in which there is some evidence of suggestiveness. We also reject a bright-line rule that would require suppression of reliable evidence any time a law enforcement officer missteps.

Second, the court system should develop enhanced jury charges on eyewitness identification for trial judges to use. We anticipate that identification evidence will continue to be admitted in the vast majority of cases. To help jurors weigh that evidence, they must be told about relevant factors and their effect on reliability. To that end, we have asked the Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft proposed revisions to the current model charge on eyewitness identification and address various system and estimator variables. With the use of more focused jury charges on those issues, there will be less need to call expert witnesses at trial. Trial courts will still have discretion to admit expert testimony when warranted.

The factors that both judges and juries will consider are not etched in stone. We expect that the scientific research underlying them will continue to evolve, as it has in the more than thirty years since Manson. For the same reason, police departments are not prevented from improving their practices as we learn more about variables that affect memory. New approaches, though, must be based on reliable scientific evidence that experts generally accept.

The changes outlined in this decision are significant because eyewitness identifications bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts' ability to conduct fair trials. Ultimately, we believe that the framework described below will both protect the rights of defendants, by minimizing the risk of misidentification, and enable the State to introduce vital evidence.

The revised principles in this decision will apply purely prospectively except for defendant Larry Henderson and defendant Cecilia Chen, the subject of a companion case also decided today. See State v. Chen, ___ N.J. ___ (2011). We remand defendant Henderson's case for a new pretrial hearing consistent with this opinion to determine the admissibility of the eyewitness evidence introduced at his trial.

II. Facts and Procedural History

A. Facts

In the early morning hours of January 1, 2003, Rodney Harper was shot to death in an apartment in Camden. James Womble witnessed the murder but did not speak with the police until they approached him ten days later.

Womble and Harper were acquaintances who occasionally socialized at the apartment of Womble's girlfriend, Vivian Williams. On the night of the murder, Womble and Williams brought in the New Year in Williams' apartment by drinking wine and champagne and smoking crack cocaine. Harper had started the evening with them but left at around 10:15 p.m. Williams also left roughly three hours later, leaving Womble alone in the apartment until Harper rejoined him at 2:00 to 2:30 a.m.

Soon after Harper returned, two men forcefully entered the apartment. Womble knew one of them, co-defendant George Clark, who had come to collect $160 from Harper. The other man was a stranger to Womble.

While Harper and Clark went to a different room, the stranger pointed a gun at Womble and told him, "Don't move, stay right here, you're not involved in this." He remained with the stranger in a small, narrow, dark hallway. Womble testified that he "got a look at" the stranger, but not "a real good look." Womble also described the gun pointed at his torso as a dark semiautomatic.

Meanwhile, Womble overheard Clark and Harper argue over money in the other room. At one point, Harper said, "do what you got to do," after which Womble heard a gunshot. Womble then walked into the room, saw Clark holding a handgun, offered to get Clark the $160, and urged him not to shoot Harper again. As Clark left, he warned Womble, "Don't rat me out, I know where you live."

Harper died from the gunshot wound to his chest on January 10, 2003. Camden County Detective Luis Ruiz and Investigator Randall MacNair were assigned to investigate the homicide, and they interviewed Womble the next day. Initially, Womble told the police that he was in the apartment when he heard two gunshots outside, that he left to look for Harper, and that he found Harper slumped over in his car in a nearby parking lot, where Harper said he had been shot by two men he did not know.

The next day, the officers confronted Womble about inconsistencies in his story. Womble claimed that they also threatened to charge him in connection with the murder. Womble then decided to "come clean." He admitted that he lied at first because he did not want to "rat" out anyone and "didn't want to get involved" out of fear of retaliation against his elderly father. Womble led the investigators to Clark, who eventually gave a statement about his involvement and identified the person who accompanied him as defendant Larry Henderson.

The officers had Womble view a photographic array on January 14, 2003. That event lies at the heart of this decision and is discussed in greater detail below. Ultimately, Womble identified defendant from the array, and Investigator MacNair prepared a warrant for his arrest. Upon arrest, defendant admitted to the police that he had accompanied Clark to the apartment where Harper was killed, and heard a gunshot while waiting in the hallway. But defendant denied witnessing or participating in the shooting.

A grand jury in Camden County returned an indictment charging Henderson and Clark with the following offenses: first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and possession of a weapon having been convicted of a prior offense, N.J.S.A. 2C:39-7(a) (Henderson) and -7(b) (Clark).

B. Photo Identification and Wade Hearing

As noted above, Womble reviewed a photo array at the Prosecutor's Office on January 14, 2003, and identified defendant as his assailant. The trial court conducted a pretrial Wade*fn1 hearing to determine the admissibility of that identification. Investigator MacNair, Detective Ruiz, and Womble all testified at the hearing. Cherry Hill Detective Thomas Weber also testified.

Detective Weber conducted the identification procedure because, consistent with guidelines issued by the Attorney General, he was not a primary investigator in the case. See Office of the Attorney Gen., N.J. Dep't of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures 1 (2001) (Attorney General Guidelines or Guidelines). According to the Guidelines, discussed in detail below, primary investigators should not administer photo or live lineup identification procedures "to ensure that inadvertent verbal cues or body language do not impact on a witness." Ibid.

Ruiz and MacNair gave Weber an array consisting of seven "filler" photos and one photo of defendant Henderson. The eight photos all depicted headshots of African-American men between the ages of twenty-eight and thirty-five, with short hair, goatees, and, according to Weber, similar facial features. At the hearing, Weber was not asked whether he knew which photograph depicted the suspect. (Later at trial, he said he did not know.)

The identification procedure took place in an interview room in the Prosecutor's Office. At first, Weber and Womble were alone in the room. Weber began by reading the following instructions off a standard form:

In a moment, I will show you a number of photographs one at a time. You may take as much time as you need to look at each one of them. You should not conclude that the person who committed the crime is in the group merely because a group of photographs is being shown to you. The person who committed the crime may or may not be in the group, and the mere display of the photographs is not meant to suggest that our office believes the person who committed the crime is in one of the photographs. You are absolutely not required to choose any of the photographs, and you should feel not obligated to choose any one. The photographs will be shown to you in random order. I am not in any way trying to influence your decision by the order of the pictures presented. Tell me immediately if you recognize the person that committed the crime in one of the photographs. All of the photographs will be shown to you even if you select a photograph.

Please keep in mind that hairstyles, beards, and mustaches are easily changed. People gain and lose weight. Also, photographs do not always show the true complexion of a person. It may be lighter or darker than shown in the photograph. If you select a photograph, please do not ask me whether I agree with or support your selection. It is your choice alone that counts. Please do not discuss whether you selected a photograph with any other witness who may be asked to look at these photographs.

To acknowledge that he understood the instructions, Womble signed the form.

Detective Weber pre-numbered the eight photos, shuffled them, and showed them to Womble one at a time. Womble quickly eliminated five of the photos. He then reviewed the remaining three, discounted one more, and said he "wasn't 100 percent sure of the final two pictures." At the Wade hearing, Detective Weber recalled that Womble "just shook his head a lot. He seemed indecisive." But he did not express any fear to Weber.

Weber left the room with the photos and informed MacNair and Ruiz that the witness had narrowed the pictures to two but could not make a final identification. MacNair and Ruiz testified at the hearing that they did not know whether defendant's picture was among the remaining two photos.

MacNair and Ruiz entered the interview room to speak with Womble. According to MacNair's testimony at the Wade hearing, he and Ruiz believed that Womble was holding back -- as he had earlier in the investigation -- based on fear. Ruiz said Womble was "nervous, upset about his father."

In an effort to calm Womble, MacNair testified that he "just told him to focus, to calm down, to relax and that any type of protection that [he] would need, any threats against [him] would be put to rest by the Police Department." Ruiz added, "just do what you have to do, and we'll be out of here." In response, according to MacNair, Womble said he "could make [an] identification."

MacNair and Ruiz then left the interview room. Ruiz testified that the entire exchange lasted less than one minute; Weber believed it took about five minutes. When Weber returned to the room, he reshuffled the eight photos and again displayed them to Womble sequentially. This time, when Womble saw defendant's photo, he slammed his hand on the table and exclaimed, "[t]hat's the mother [------] there." From start to finish, the entire process took fifteen minutes.

Womble did not recant his identification, but during the Wade hearing he testified that he felt as though Detective Weber was "nudging" him to choose defendant's photo, and "that there was pressure" to make a choice.

After hearing the testimony, the trial court applied the two-part Manson/Madison test to evaluate the admissibility of the eyewitness identification. See Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Madison, supra, 109 N.J. 232-33. The test requires courts to determine first if police identification procedures were impermissibly suggestive; if so, courts then weigh five reliability factors to decide if the identification evidence is nonetheless admissible. See Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Madison, supra, 109 N.J. 232-33.

The trial court first found that the photo display itself was "a fair makeup." Under the totality of the circumstances, the judge concluded that the photo identification was reliable. The court found that there was "nothing in this case that was improper, and certainly nothing that was so suggestive as to result in a substantial likelihood of misidentification at all." The court also noted that Womble displayed no doubts about identifying defendant Henderson, that he had the opportunity to view defendant at the crime scene, and that Womble fixed his attention on defendant "because he had a gun on him."

C. Trial

The following facts -- relevant to Womble's identification of defendant -- were adduced at trial after the court determined that the identification was admissible: Womble smoked two bags of crack cocaine with his girlfriend in the hours before the shooting; the two also consumed one bottle of champagne and one bottle of wine; the lighting was "pretty dark" in the hallway where Womble and defendant interacted; defendant shoved Womble during the incident; and Womble remembered looking at the gun pointed at his chest. Womble also admitted smoking about two bags of crack cocaine each day from the time of the shooting until speaking with police ten days later.

At trial, Womble elaborated on his state of mind during the identification procedure. He testified that when he first looked at the photo array, he did not see anyone he recognized. As he explained, "[m]y mind was drawing a blank . . . so I just started eliminating photos." To make a final identification, Womble said that he "really had to search deep." He was nonetheless "sure" of the identification.

Womble had no difficulty identifying defendant at trial eighteen months later. From the witness stand, Womble agreed that he had no doubt that defendant -- the man in the courtroom wearing "the white dress shirt" -- "is the man who held [him] at bay with a gun to [his] chest."

Womble also testified that he discarded a shell casing from the shooting at an intersection five or six blocks from the apartment; he helped the police retrieve the casing ten days later. No guns or other physical evidence were introduced linking defendant to the casing or the crime scene.

Neither Clark nor defendant testified at trial. The primary evidence against defendant, thus, was Womble's identification and Detective MacNair's testimony about defendant's post-arrest statement.*fn2

At the close of trial on July 20, 2004, the court relied on the existing model jury charge on eyewitness identification and instructed the jury as follows:

[Y]ou should consider the observations and perceptions on which the identification is based, and Womble's ability to make those observations and perceptions. If you determine that his out-of-court identification is not reliable, you may still consider Womble's in-court identification of Gregory Clark and Larry Henderson if you find that to be reliable. However, unless the identification here in court resulted from Womble's observations or perceptions of a perpetrator during the commission of an offense rather than being the product of an impression gained at an out-of-court identification procedure such as a photo lineup, it should be afforded no weight. The ultimate issues of the trustworthiness of both in-court and out-of-court identifications are for you, the jury to decide.

To decide whether the identification testimony is sufficiently reliable evidence . . . you may consider the following factors:

First of all, Womble's opportunity to view the person or persons who allegedly committed the offense at the time of the offense; second, Womble's degree of attention on the alleged perpetrator when he allegedly observed the crime being committed; third, the accuracy of any prior description of the perpetrator given [b]y Womble; fourth, you should consider the fact that in Womble's sworn taped statement of January 11th, 2003 to the police . . ., Womble did not identify anyone as the person or persons involved in the shooting of Rodney Harper . . . .

Next, you should consider the degree of certainty, if any, expressed by Womble in making the identification. . . .*fn3

You should also consider the length of time between Womble's observation of the alleged offense and his identification . . . . You should consider any discrepancies or inconsistencies between identifications . .

Next, the circumstances under which any out-of-court identification was made including in this case the evidence that during the showing to him of eight photos by Detective Weber he did not identify Larry Henderson when he first looked at them and later identified Larry Henderson from one of those photos.

. . . . You may also consider any other factor based on the evidence or lack of evidence in the case which you consider relevant to your determination whether the identification made by Womble is reliable or not.

Defendant did not object to the charge or ask for any additional instructions related to the identification evidence presented at trial.

On July 20, 2004, the jury acquitted defendant of murder and aggravated manslaughter, and convicted him of reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), aggravated assault, and two weapons charges. In a bifurcated trial the next day, the jury convicted defendant of the remaining firearms offense: possession by a previously convicted person. The court sentenced him to an aggregate eleven-year term of imprisonment, with a period of parole ineligibility of almost six years under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and sentence.

D. Appellate Division

The Appellate Division presumed that the identification procedure in this case was impermissibly suggestive under the first prong of the Manson/Madison test. State v. Henderson, 397 N.J. Super. 398, 414 (App. Div. 2008). The court reversed and remanded for a new Wade hearing to determine whether the identification was nonetheless reliable under the test's second prong. Id. at 400, 414-15.

The panel anchored its finding to what it considered to be a material breach of the Attorney General Guidelines. Id. at 412. Among other things, the Guidelines require that "'whenever practical' the person conducting the photographic identification procedure 'should be someone other than the primary investigator assigned to the case.'" Id. at 411 (citing State v. Herrera, 187 N.J. 493, 516 (2006)). The panel specifically found that the investigating officers, MacNair and Ruiz, "consciously and deliberately intruded into the process for the purpose of assisting or influencing Womble's identification of defendant." Id. at 414. The officers' behavior, the court explained, "certainly violate[d] the spirit of the Guidelines." Id. at 412. In such circumstances, the panel "conclude[d] that a presumption of impermissible suggestiveness must be imposed, and a new Wade hearing conducted." Id. at 400.

E. Certification and Remand Order

We granted the State's petition for certification, 195 N.J. 521 (2008), and also granted leave to appear as amicus curiae to the Association of Criminal Defense Lawyers of New Jersey (ACDL) and the Innocence Project (collectively "amici"). In their briefs and at oral argument, the parties and amici raised questions about possible shortcomings in the Manson/Madison test in light of recent scientific research.

In an unpublished Order dated February 26, 2009, attached as Appendix A, we "concluded that an inadequate factual record exist[ed] on which [to] test the current validity of our state law standards on the admissibility of eyewitness identification." App. A at *3. We therefore remanded the matter summarily to the trial court for a plenary hearing to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence. [Ibid.]

We appointed the Honorable Geoffrey Gaulkin, P.J.A.D. (retired and temporarily assigned on recall) to preside at the remand hearing as a Special Master.

Pursuant to the Order, the following parties participated in the remand hearing: the Attorney General, the Public Defender (representing defendant*fn4 ), and amici.

The parties and amici collectively produced more than 360 exhibits, which included more than 200 published scientific studies on human memory and eyewitness identification. During the ten-day remand hearing, the Special Master heard testimony from seven expert witnesses. Three of them --- Drs. Gary Wells, Steven Penrod, and Roy Malpass -- testified about the state of scientific research in the field of eyewitness identification.

Dr. Wells, who was called as a witness by the Innocence Project, holds a Ph.D. in Experimental Social Psychology and serves as a Professor of Psychology at Iowa State University.

Since 1977, Dr. Wells has published more than 100 articles on eyewitness identification research. He assisted the Attorney General's Office in connection with the formulation of the Attorney General Guidelines.

Dr. Penrod, who was called as a witness by defendant, is a Distinguished Professor of Psychology at John Jay College of Criminal Justice in New York. He holds a degree in law and a Ph.D. in Pyschology. Dr. Penrod has also published extensively in the area of eyewitness identification and has served on the editorial board of numerous psychology journals.

Dr. Malpass, who was called by the State, is also widely published. He holds a Ph.D., and his academic career spans more than four decades. Dr. Malpass is currently a Professor of Psychology and Criminal Justice at the University of Texas, El Paso, where he runs the university's Eyewitness Identification Research Lab.

The parties and amici also presented the testimony of three law professors: James Doyle, Jules Epstein, and Dr. John Monahan. The professors discussed the intersection of eyewitness identification research and the legal system.

Dr. Monahan and Professor Doyle were called as witnesses by the Innocence Project. Dr. Monahan has a Ph.D. in Clinical Psychology, is a Distinguished Professor of Law at the University of Virginia, and holds dual appointments in the Departments of Psychology and Psychiatric and Neurobehavioral Sciences. He co-authored the casebook Social Science in Law (7th ed. 2010), and has published extensively on that topic. Professor Doyle is Director of the Center for Modern Forensic Practice at John Jay College of Criminal Justice. In 1987, he co-authored a treatise titled Eyewitness Testimony: Civil and Criminal, which he regularly updates.

Defendant presented Professor Epstein as a witness. He is an Associate Professor of Law at Widener University School of Law, who has spent more than a decade representing criminal defendants in Philadelphia. He, too, has written extensively on eyewitness identification.

The State also called James Gannon to testify. From 1986 to 2007, he worked with the Morris County Prosecutor's Office, ultimately serving as Deputy Chief of Investigations. During his career, he investigated approximately 120 homicides. He continues to train law enforcement personnel locally and internationally. Gannon testified about practical constraints police officers sometimes face in conducting investigations.

III. Proof of Misidentifications

In this case, the parties heavily dispute the admissibility and reliability of Womble's eyewitness identification of defendant. We therefore begin with some important, general observations about eyewitness identification evidence, which are derived mostly from the remand hearing as well as prior case law.

In 2006, this Court observed that eyewitness "[m]isidentification is widely recognized as the single greatest cause of wrongful convictions in this country." State v. Delgado, 188 N.J. 48, 60 (2006) (citations omitted); see also Romero, supra, 191 N.J. at 73-74 ("Some have pronounced that mistaken identifications 'present what is conceivably the greatest single threat to the achievement of our ideal that no innocent man shall be punished.'" (citation omitted)). That same year, the International Association of Chiefs of Police published training guidelines in which it concluded that "[o]f all investigative procedures employed by police in criminal cases, probably none is less reliable than the eyewitness identification. Erroneous identifications create more injustice and cause more suffering to innocent persons than perhaps any other aspect of police work." Int'l Ass'n of Chiefs of Police, Training Key No. 600, Eyewitness Identification 5 (2006).

Substantial evidence in the record supports those statements. Nationwide, "more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification." Romero, supra, 191 N.J. at 74 (citing Innocence Project report); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011)*fn5

(finding same in 190 of first 250 DNA exoneration cases). In half of the cases, eyewitness testimony was not corroborated by confessions, forensic science, or informants. See The Innocence Project, Understand the Causes: Eyewitness Misidentification, http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php (last visited August 16, 2011). Thirty-six percent of the defendants convicted were misidentified by more than one eyewitness. Garrett, supra, at 50. As we recognized four years ago, "[i]t has been estimated that approximately 7,500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications." Romero, supra, 191 N.J. at 74 (citing Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 7 (1995)).

New Jersey is not immune. The parties noted that misidentifications factored into three of the five reported DNA exonerations in our State. In one of those cases, this Court had reversed convictions for rape and robbery because the trial court failed to instruct the jury that people may have greater difficulty in identifying members of a different race. See State v. Cromedy, 158 N.J. 112, 121-23, 132 (1999) (citing social science studies). After the decision, DNA tests led to Cromedy's exoneration.

But DNA exonerations are rare. To determine whether statistics from such cases reflect system-wide flaws, police departments have allowed social scientists to analyze case files and observe and record data from real-world identification procedures.

Four such studies -- two from Sacramento, California and two from London, England -- produced data from thousands of actual eyewitness identifications. See Bruce W. Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475 (2001) (compiling records from fifty-eight live police lineups from area around Sacramento); Bruce W. Behrman & Regina E. Richards, Suspect/Foil Identification in Actual Crimes and in the Laboratory: A Reality Monitoring Analysis, 29 Law & Hum. Behav. 279 (2005) (assessing 461 photo and live lineup records from same area); Tim Valentine et al., Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 Applied Cognitive Psychol. 969 (2003) (analyzing 584 lineup records from police stations in and around London); Daniel B. Wright & Anne T. McDaid, Comparing System and Estimator Variables Using Data from Real Line-Ups, 10 Applied Cognitive Psychol. 75 (1996) (evaluating 1,561 records from same area).

For the larger London study, 39% of eyewitnesses identified the suspect, 20% identified a filler, and 41% made no identification. See Wright & McDaid, supra, at 77. Thus, about one-third of eyewitnesses who made an identification (20 of 59) in real police investigations wrongly selected an innocent filler. The results were comparable for the Valentine study. See Valentine, supra, at 974. Across both Sacramento studies, 51% of eyewitnesses identified the suspect, 16% identified a filler, and 33% identified no one. See Behrman & Davey, supra, at 482; Behrman & Richards, supra, at 285. In other words, nearly 24% of those who made an identification (16 of 67) mistakenly identified an innocent filler.

Although the studies revealed alarming rates at which witnesses chose innocent fillers out of police lineups, the data cannot identify how many of the suspects actually selected were the real culprits. See Behrman & Davey, supra, at 478. Researchers have conducted field experiments to try to answer that more elusive question: how often are innocent suspects wrongly identified?

Three experiments targeted unassuming convenience store clerks and one focused on bank tellers. See John C. Brigham et al., Accuracy of Eyewitness Identifications in a Field Setting, 42 J. Personality & Soc. Psychol. 673 (1982); Carol Krafka & Steven Penrod, Reinstatement of Context in a Field Experiment on Eyewitness Identification, 49 J. Personality & Soc. Psychol. 58 (1985); Stephanie J. Platz & Harmon M. Hosch, Cross-Racial/Ethnic Eyewitness Identification: A Field Study, 18 J. Applied Soc. Psychol. 972 (1988); Melissa A. Pigott et al., A Field Study on the Relationship Between Quality of Eyewitnesses' Descriptions and Identification Accuracy, 17 J. Police Sci. & Admin. 84 (1990) (bank teller study).

Each study unfolded with different variations of the following approach: a customer walked into a store and tried to buy a can of soda with a $10 traveler's check; he produced two pieces of identification and chatted with the clerk; and the encounter lasted about three minutes. See, e.g., Krafka & Penrod, supra, at 62. Two to twenty-four hours later, a different person entered the same store and asked the same clerk to identify the man with the traveler's check; the clerk was told that the suspect might not be among the six photos presented; and no details of the investigation were given.

Ibid. Only after making a choice was the clerk told that he or she had participated in an experiment. Id. at 63.

Across the four experiments, researchers gathered data from more than 500 identifications. Dr. Penrod testified that on average, 42% of clerks made correct identifications, 41% identified photographs of innocent fillers, and 17% chose to identify no one. See Brigham et al., supra, at 677; Krafka & Penrod, supra, at 64-65; Pigott et al., supra, at 86-87; Platz & Hosch, supra, at 978. Those ...


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