N.J. Model Criminal Jury Charge, N.J.S.A. Non 2C

Revised 7/19/12

Effective 9/4/12

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(Defendant), as part of his/her general de nial of guilt, contends that the State has

not presented sufficient reliable evidence to establish beyond a reasonable doubt that

he/she is the person who committed the alleged offense. The burden of proving the

identity of the person who committed the crime is upon the State. For you to find

defendant guilty, the State must prove be yond a reasonable doubt that this person is the

person who committed the crime. (Defendant ) has neither the burden nor the duty to

show that the crime, if committed, was co mmitted by someone else, or to prove the

identity of that other person. You must dete rmine, therefore, not only whether the State

has proved each and every element of the offense charged beyond a reasonable doubt, but

also whether the State has proved beyond a reasonable doubt th at (this defendant) is the

person who committed it.

The State has presented testimony of [insert name of witness who identified

defendant]. You will recall that this witness identified the defendant as the person who

committed [insert the offense(s) charged]. According to the witness, [his/her]

identification of the defendant was based upon the observations and perceptions that

[he/she] made of the perpetrator at the time the offense was being committed. It is your

function to determine whether the witness’s id entification of (defe ndant) is reliable and

believable, or whether it is based on a mist ake or for any reason is not worthy of belief. 1

You must decide whether it is sufficiently re liable evidence upon whic h to conclude that

(this defendant) is the person who committed the offense[s] charged.

1 United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158

(1967); State v. Green, 86 N.J. 281, 291-93 (1981); State v. Edmonds, 293 N.J. Super. 113, 118-

19 (App. Div. 1996).

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Eyewitness identification eviden ce must be scrutinized carefully . Hum an beings

have the ability to recognize other people from past experiences and to identify them at a

later time, but research has s hown that there are risks of ma king mistaken identifications.

That research has focused on the nature of memory and the factors that affect the

reliability of eyewitness identifications.

Human memory is not foolpr oof. Research has revealed that human memory is

not like a video recording that a witness need only replay to remember what happened.

Memory is far more complex. 2 The process of rememberi ng consists of three stages:

acquisition -- the perception of the original event; retention -- the period of time that

passes between the event and the eventual r ecollection of a piece of information; and

retrieval -- the stage during which a person reca lls stored information. At each of these

stages, memory can be affected by a variety of factors.3

Relying on some of the research that has been done, I will instruct you on specific

factors you should consider in this case in determining whether the eyewitness

identification evidence is reliable. In eval uating this identificati on, you should consider

the observations and perceptions on which th e identification was based, the witness’s

ability to make those observations and pe rceive events, and th e circumstances under

which the identification was made. Although nothing may appear more convincing than

a witness’s categorical identif ication of a perpetrator, you must critically analyze such

testimony. Such identifications, even if made in good faith, may be mistaken. Therefore,

2 State v. Henderson, 208 N.J. 208, 245 (2011).

3 Id. at 245-46.

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when analyzing such testimony, be advised that a witness’s level of conf idence, standing

alone, may not be an indication of the reliability of the identification.4

In deciding what weight, if any, to give to the identification testimony, you should

consider the following factors that are related to the witness, the al leged perpetrator, and

the criminal incident itself.5 [choose appropriate factors]:

(1) The Witness’s Opportunity to View and Degree of Attention : In evaluating

the reliability of the identification, you should assess the w itness’s opportunity

to view the person who committed the offense at the time of the offense and the

witness’s degree of attention to the perpetrator at the time of the offense. In

making this assessment you should consider the following [choose appropriate

factors from (a) through (g) below]:

(a) Stress : Even under the best viewing condi tions, high levels of stress can

reduce an eyewitness’s ability to recall and make an accurate identification.

Therefore, you should consider a witne ss’s level of stress and whether that

stress, if any, distracted the witness or made it harder for him or her to

identify the perpetrator.

6

(b) Duration: The amount of time an eyewitn ess has to observe an event may

affect the reliability of an identification. Although there is no minimum

time required to make an accurate identification, a brief or fleeting contact is

less likely to produce an accurate iden tification than a more prolonged

exposure to the perpetrator. In addition, time estimates given by witnesses

may not always be accurate because witnesses tend to think events lasted

longer than they actually did.

7

(c) Weapon Focus : You should consider whether the witness saw a weapon

during the incident and the duration of the crime. The presence of a weapon

can distract the witness and take th e witness’s attention away from the

perpetrator's face. As a result, the presence of a visible weapon may reduce

the reliability of a subsequent identifi cation if the crime is of short duration.

In considering this factor, you should take into account the duration of the

crime because the longer the event, the more time the witness may have to

adapt to the presence of the weapon and focus on other details.

8

4 State v. Romero, 191 N.J. 59, 76 (2007).

5 Henderson, supra, 208 N.J. at 247.

6 Id. at 261-62.

7 Id. at 264.

8 Id. at 262-63.

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(d) Distance: A person is easier to identify when close by. The greater the

distance between an eyewitness and a perp etrator, the higher the risk of a

mistaken identification. In addition, a witness’s estimate of how far he or

she was from the perpetrator may not always be accurate because people

tend to have difficulty estimating distances.9

(e) Lighting: Inadequate lighting can reduce the reliability of an identification.

You should consider the lighting condi tions present at the time of the

alleged crime in this case.

10

(f) Intoxication: The influence of alcohol can affect the reliability of an

identification.11 An identification made by a witness under the influence of

a high level of alcohol at the time of the incident tends to be more unreliable

than an identification by a witness who drank a small amount of alcohol. 12

(g) Disguises/Changed Appearance: The perpetrator’s use of a disguise can

affect a witness’s ability both to reme mber and identify the perpetrator.

Disguises like hats, sunglasses, or masks can reduce the accuracy of an

identification.

13 Similarly, if facial features are altered between the time of

the event and a later identification procedure, the accuracy of the

identification may decrease.14

(2) Prior Description of Perpetrator: Another factor for your consideration is the

accuracy of any description the witness gave after observing the incident and

before identifying the perpetrator. Facts that may be relevant to this factor

include whether the prior description matched the person picked out later, whether

the prior description provided details or was just general in nature, and whether

the witness's testimony at trial was consistent with, or different from, his/her prior

description of the perpetrator. [Charge if appropriate : You may also consider

whether the witness did not identify th e defendant at a prior identification

procedure or chose a different suspect or filler.]

(3) Confidence and Accuracy : You heard testimony that (i nsert name of witness)

expressed his/her level of certainty that th e person he/she selected is in fact the

person who committed the crime. As I explained earlier, a witness’s level of

confidence, standing alone, may not be an indication of the reliability of the

identification.

15 Although some research has found that highly confident

9 Id.at 264.

10 Ibid.

11 If there is evidence of impairment by drugs or other substances, the charge can be

modified accordingly.

12 Henderson, supra, 208 N.J. at 265.

13 Id. at 266.

14 Ibid.

15 Id. at 254 (quoting Romero, supra, 191 N.J. at 76).

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witnesses are more likely to make accura te iden tifications, eyewitness confidence

is generally an unreliable indicator of accuracy.16

(4) Time Elapsed : Memories fade with time. As a result, delays between the

commission of a crime and the time an identification is made can affect the

reliability of the identification. In othe r words, the more time that passes, the

greater the possibility that a witness’s memory of a perpetrator will weaken.17

(5) Cross-Racial Effects : Research has shown that people may have greater

difficulty in accurately identifying members of a different race. 18 You should

consider whether the fact that the witne ss and the defendant ar e not of the same

race may have influenced the accuracy of the witness’s identification.

[The jury should also be charged on any other relevant factors in the case.]

You may consider whether th e witness was exposed to op inions, descriptions, or

identifications given by other witnesses, to photographs or newspaper accounts, or to any

other information or influence, that may ha ve affected the independence of his/her

identification.

19 Such information can affect the independent nature and reliability of a

witness’s identification and inflate the witness’s confidence in the identification.

You are also free to consider any other f actor based on the evidence or lack of

evidence in the case that you consider re levant to your determination whether the

identification was reliable. Keep in mind that the presence of any single factor or

combination of factor(s), however, is not an indication that a pa rticular witness is

incorrect. Instead, you may consider the factor s that I have discussed as you assess all of

the circumstances of the case, including a ll of the testimony and documentary evidence,

in determining whether a particular identificat ion made by a witness is accurate and thus

16 Id. at 253-55.

17 Id. at 267.

18 This instruction must be given whenever there is a cross-racial identification. Id. at 299

(modifying State v. Cromedy, 158 N.J. 112, 132 (1999)).

19 State v. Chen, 208 N.J. 307 (2011).

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worthy of your consideration as you decide wh ether the State has met its burden to prove

identification beyond a reasonable doubt. If you determine that the in-court identification

resulted from the witness's observations or perceptions of the perpetrator during the

commission of the offense, you may consider that evidence and decide how much weight

to give it. If you instead decide that the identification is the product of an impression

gained at the in-court identification procedur e, the identification s hould be afforded no

weight. The ultimate issue of the trustworthiness of the identification is for you to

decide.

If, after considering all of the eviden ce, you determine that the State has not

proven beyond a reasonable doubt that (defendant) was the person who committed this

offense [these offenses], then you must fi nd him/her not guilty. If, on the other hand,

after considering all of the evidence, you are convinced be yond a reasonable doubt that

(defendant) was correctly identified, you will then consider whether the State has proven

each and every element of the offense[s] charged beyond a reasonable doubt.