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

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

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

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

Avoiding Feedback and Recording Confidence ... 57

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

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

Composites ................................... 65

Showups ...................................... 67

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

Stress ....................................... 70

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

Duration ..................................... 74

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

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

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

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

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

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

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

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

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

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

Parties’ Arguments ................................... 97

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

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

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

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

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

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 Wade1 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.2

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. . . .3

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 defendant4), 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,