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 procedures for 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

The court has previously recognized that it is difficult to determine which eyewitness identifications are accurate without strong outside evidence. This difficulty arises because memories can be reliable or can be changed by many factors. To ensure that eyewitness identifications made outside of court are trustworthy, the court studied the science of memory and the factors that influence these identifications. This led to strict rules and procedures for allowing out-of-court eyewitness identifications into evidence.

While the court established important safeguards for defendants regarding 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 these identifications are not subject to the same protections as out-of-court identifications, they are vulnerable to the same memory science and influencing factors. This can lead to incorrect identifications and wrongful convictions. Courts have compared these first-time in-court identifications to "showups," but they are actually more harmful and cannot be justified. Showups, which are generally not favored due to their suggestive nature, can sometimes be justified if they happen during an active investigation, soon after the crime, before memories fade. However, first-time in-court identifications often occur years after the crime. They also take place 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 determine if 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 scientific principles behind those protections, such an identification should not be allowed.

The court also has the chance to address a second significant, related issue about in-court witness identifications. This issue concerns whether an eyewitness who previously stated a certain level of confidence in an out-of-court identification should be allowed to testify at trial that they are now more confident. Based on the analysis from previous rulings, the answer should be no.

Preliminary Statement

The legal system recognizes that it is difficult to determine which eyewitness identifications are correct and which are mistaken without additional evidence. This difficulty arises because various factors can influence and distort a person's memory. To address this, strict rules and procedures have been established for using eyewitness identifications made outside of court. These rules aim to ensure such identifications are dependable.

While important safeguards exist for out-of-court identifications, the reliability of identifications made for the first time in court has not been fully addressed. These first-time, in-court identifications (FITIC IDs) are especially prone to suggestion. They are susceptible to the same memory science and influencing factors as out-of-court identifications, potentially leading to errors and wrongful convictions. Courts have compared FITIC IDs to "showups," where a single suspect is presented to a witness. However, FITIC IDs are considered more problematic. Showups, though generally disfavored due to their suggestive nature, can sometimes be justified if they happen soon after a crime, when memories are fresher. In contrast, FITIC IDs often occur years after the crime. They also take place in a highly suggestive setting, with the suspect at the defense table, and the witness aware 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 due process requirements under the United States and New Jersey Constitutions, especially when it has not been subjected to existing safeguards. Considering the reasoning and scientific basis behind those safeguards, the conclusion is that such identifications cannot meet these requirements.

Furthermore, the court can address another significant issue concerning in-court identifications: whether an eyewitness who made an out-of-court identification with a certain level of confidence should be allowed to express greater confidence in that identification during a trial. Based on previous analysis, the answer to this question is no.

Summary

In the State v. Henderson case, the court recognized that without strong outside proof, it is impossible to know for sure if an eyewitness's identification is correct or mistaken. Many factors can affect how reliable a memory is. To make sure eyewitness identifications made outside of court are trustworthy, the court established strict rules and steps for their use.

While the Henderson case created important protections for defendants regarding out-of-court identifications, it did not address the reliability of identifications made for the first time in court. These first-time, in-court identifications (FITIC IDs) are especially likely to suggest a specific person. Since the Henderson rules do not check their reliability, FITIC IDs are prone to the same memory issues and influencing factors as out-of-court identifications, which can lead to mistakes and wrong convictions. Although some courts have compared FITIC IDs to "showups" (where a witness sees a single suspect), FITIC IDs are more harmful and cannot be justified. Showups, while generally discouraged due to their suggestive nature, can sometimes be allowed if they happen soon after a crime, when memories are fresh, as part of an active investigation. In contrast, FITIC IDs often happen years after a crime. They also occur in a highly suggestive setting where the person is sitting at the defense table, and the witness knows that the police and prosecutor believe that person is guilty after their investigation.

The court now has an opportunity to add to these constitutional protections. It can decide if a first-time, in-court identification can ever meet the requirements of due process under the United States and New Jersey Constitutions, especially when it has not gone through the Henderson checks. Applying the ideas and scientific basis from Henderson, the answer to this question is no.

Additionally, the court can address another important, related issue about in-court identifications: 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 more confident in that identification at the time of trial. Based on 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 know if a person’s memory of seeing someone is correct or not. Many things can change how a person remembers. To make sure that people picked out of a lineup are the right ones, the court made strong rules. These rules help to make sure that these identifications are fair and accurate.

However, the Henderson rules did not cover when a witness identifies someone for the first time in court. This is called a "first-time, in-court identification" (FITIC ID). These identifications can be very misleading. When a witness points someone out in court, it can happen years after the crime. The person they point to is usually sitting at the defense table. The witness knows that the police and lawyers think this person is guilty. This can make the witness think they are more sure than they really are.

This court now has a chance to make new rules for these in-court identifications. The argument is that if an identification was not checked by the Henderson rules, it should not be allowed.

The court also has a chance to answer another important question. Sometimes, a witness says they are somewhat sure about who they identified outside of court. Later, in court, they say they are much more sure. The court should decide if a witness can say they are more confident in court than they were before. The argument is that this should not be allowed.