PRELIMINARY STATEMENT

In the landmark case State v. Henderson, this Court acknowledged that "[w]ithout persuasive extrinsic evidence, one cannot know for certain which [eyewitnesses] identifications are accurate and which are false-which are the product of reliable memories and which are distorted by one of a number of factors." 208 N.J. 208, 235 (2011). In order to ensure that out-of-court witness identifications are reliable, this Court pored over the science of memory and the factors that influence eyewitness identifications, setting forth rigorous standards and proceduresfor the admission of out-of-court eyewitness identifications. See generally id.

While the Henderson Court set forth significant safeguards and constitutional protections for criminal defendants in out-of-court eyewitness identifications, it did not address the equally significant issue of the reliability of first-time, in-court identifications, which are uniquely suggestive. Because their reliability cannot be verified by the Henderson protections, first-time, in-court identifications ("FITIC ID") are vulnerable to the same science of memory and factors that influence out- of-court identifications and can result in mistaken identifications and wrongful conviction. Further, although courts have likened FITIC IDs to showups, FITIC IDs are uniquely pernicious and cannot be justified. Unlike showups, which are generally disfavored in light of the inherent suggestiveness, but can sometimes be justified because they occur in a dynamic investigative setting, close in time to the crime before memory has faded, FITIC IDs often occur years after the crime took place. FITIC IDs are also made in a uniquely suggestive environment where the suspect is seated at the defense table and the witness knows that the police and prosecutor-after an investigation-believe the defendant to be guilty.

This Court now has an opportunity to fill this void in constitutional protections and answer the question of whether a first-time, in-court identification can ever satisfy the due process clauses of the United States and New Jersey Constitutions, when it has not withstood the Henderson protections. Extending the reasoning and science underpinning Henderson to this question, the answer is no.

This Court also has the chance to answer a second significant, related issue that has yet to be addressed regarding in-court witness identifications: whether an eyewitness who has made an out-of-court identification with a statement of a particular degree of confidence should be permitted to testify at trial that they are more confident at the time of trial of the identification than they were out-of-court. Based upon the analysis in Henderson, the answer is no.

Preliminary Statement

Court acknowledged that it is difficult to know for sure if eyewitness identifications are correct without strong outside proof. It is hard to tell which memories are dependable and which ones are changed by different factors. To make sure that witness identifications made outside of court are trustworthy, the Court carefully studied how memory works and what affects eyewitness identifications. It then created strict rules for allowing these identifications into evidence.

While the Court established important safeguards for defendants in out-of-court identifications, it did not address the equally important issue of how reliable first-time identifications made in court are. These in-court identifications are very suggestive. Because they cannot be checked by the existing protections, first-time in-court identifications are subject to the same memory science and factors that influence out-of-court identifications. This can lead to wrong identifications and convictions. Also, although courts have compared these first-time in-court identifications to "showups" (where a single suspect is presented to a witness), they are uniquely harmful and cannot be justified. Showups are generally not favored because they are inherently suggestive, but they can sometimes be justified if they happen during an active investigation, soon after the crime, before memories fade. In contrast, first-time in-court identifications often occur years after the crime. They also happen in a very suggestive setting where the suspect is at the defense table, and the witness knows that the police and prosecutor believe the defendant is guilty after their investigation.

The Court now has an opportunity to address this gap in constitutional protections. It can answer whether a first-time identification made in court can ever meet the due process requirements of the United States and New Jersey Constitutions when it has not gone through the established protections. Based on the reasoning and science from that earlier case, the answer is that it cannot.

The Court also has the chance to answer a second important, related question about in-court witness identifications: Should an eyewitness who made an identification outside of court with a certain level of confidence be allowed to testify at trial that they are more confident about the identification at the time of trial than they were outside of court? Based on the analysis in the Henderson case, the answer is no.

Preliminary Statement

A previous court case, State v. Henderson, recognized that it is difficult to know for certain if eyewitness identifications are accurate without strong outside evidence. This is because memories can be unreliable or easily influenced by various factors. To make sure that eyewitness identifications made outside of court are trustworthy, the Court carefully studied memory science and the factors that impact eyewitness accounts. This led to strict rules for allowing these types of identifications into evidence.

While Henderson put important safeguards in place for defendants regarding out-of-court identifications, it did not address the equally important issue of first-time identifications made in court. These in-court identifications are particularly prone to suggestion. Since they do not have the same protections as out-of-court identifications, first-time in-court identifications (FITIC IDs) can be affected by the same memory science and factors, potentially leading to incorrect identifications and wrongful convictions. Courts have compared FITIC IDs to "showups" (where a witness identifies a suspect alone), but FITIC IDs are considered even more problematic. Showups are generally not favored because they are suggestive, but they can sometimes be justified if they happen soon after a crime, before memories fade. In contrast, FITIC IDs often occur years after a crime. They also happen in a highly suggestive setting where the suspect is at the defense table, and the witness knows that law enforcement believes the defendant is guilty after an investigation.

The Court now has an opportunity to strengthen constitutional protections by deciding if a first-time in-court identification can ever meet the due process requirements of the United States and New Jersey Constitutions, especially when it has not gone through the Henderson protections. Applying the logic and scientific basis of Henderson to this question suggests that the answer is no.

Additionally, the Court can address another important, related issue concerning in-court witness identifications. This involves whether an eyewitness who expressed a certain level of confidence in an out-of-court identification should be allowed to state in court that they are now more confident. Based on the analysis in Henderson, the answer to this question is also no.

Overview of Eyewitness Identification Rules

A court case called State v. Henderson previously recognized that it is difficult to know if an eyewitness identification is accurate without strong outside proof. The court noted that identifications can be either true memories or distorted by various factors. To make sure eyewitness identifications made outside of court are trustworthy, the court carefully studied how memory works and what influences eyewitnesses. This led to strict rules and steps for allowing these out-of-court identifications as evidence.

While the Henderson case established important safeguards for criminal defendants in out-of-court identifications, it did not address the equally important issue of how reliable first-time identifications made in court are. These in-court identifications are particularly prone to suggestion. Since the Henderson protections do not cover them, first-time, in-court identifications (FITIC IDs) are susceptible to the same memory science and influencing factors as out-of-court identifications. This can lead to incorrect identifications and wrongful convictions. Courts have compared FITIC IDs to "showups" (where a suspect is presented alone to a witness), but FITIC IDs are considered more harmful and cannot be justified in the same way. Showups, while generally discouraged due to their suggestive nature, can sometimes be allowed because they happen during an active investigation, soon after a crime, before memories fade. However, FITIC IDs often occur years after a crime. They are also made in a very suggestive setting where the suspect is at the defense table, and the witness knows that the police and prosecutor believe the defendant is guilty after an investigation.

The court now has an opportunity to address this gap in constitutional protection. It can decide whether a first-time, in-court identification can ever meet the due process requirements of the United States and New Jersey Constitutions, especially when it has not gone through the Henderson protections. Based on the reasoning and scientific principles from Henderson, the answer to this question is no.

The court also has the chance to address a second major related issue concerning in-court witness identifications. This issue is whether an eyewitness who made an out-of-court identification with a certain level of confidence should be allowed to testify in court that they are now more confident in their identification than they were outside of court. According to the analysis in Henderson, the answer to this question is also no.

Summary

A court case called State v. Henderson showed that it is hard to tell if someone's memory of seeing a person is correct or not. There are many things that can change what someone remembers. Because of this, the court made new rules for when a witness identifies someone outside of court. These rules help make sure the identification is dependable.

The Henderson case helped people identified outside of court. But it did not talk about when a witness identifies someone for the first time in court. These in-court identifications can be very misleading. They do not have the same rules to check if they are correct. This means they can lead to someone being wrongly accused.

In-court identifications are also different from what are called "showups." A showup happens soon after a crime, when memories are fresh. But first-time in-court identifications often happen years later. Also, in court, the person identified is usually sitting at a special table. The witness knows the police think that person is guilty. This can make the witness think they are sure, even if they are not.

This court now has a chance to fix this problem. It can decide if a first-time identification made in court can ever be fair. Based on the Henderson case, the answer should be no.

The court can also decide another important thing. Sometimes a witness says they are somewhat sure about who they saw outside of court. Should they be allowed to say they are more sure when they are in court? Based on what the Henderson case taught us, the answer should be no.