S OF COUNSEL. VALERIA DOMINGUEZ: GOOD MORNING, GOOD
AFTERNOON YOUR HONOR, DEPUTY ATTORNEY GENERAL, VALERIA DOMINGUEZ ON BEHALF OF THE
STAILT. DANIEL S. ROCKOFF: GOOD AFTERNOON, DANIEL ROCKOFF
CYST DEPUTY PUBLIC DEFENDER ON 'BEHALF OF THE RESPONDENT. CHIEF
JUSTICE RABNER: MS. DOMINGUEZ PLEASE GO AHEAD. VALERIA
DOMINGUEZ: MAY I REQUEST TWO MINUTES FOR REBUTTAL IF NECESSARY.
THE COURT: YES, THAT'S FINE. VALERIA DOMINGUEZ: THANK YOU.
THE STATE'S CASE HERE WAS A CIRCUMSTANTIAL EVIDENCE CASE AND THEY HAD TESTIMONY
FROM 17 WITNESSES, TWO OF THESE WITNESSES, WERE CALLED, THE CAR VERSE WERE CALLED
TO TESTIFY MERELY BECAUSE THEIR OBSERVATIONS OF THE MAN WALKING IN A TOTALLY UNOCCUPIED
AREA AND REPEATEDLY LOOKING BACK AT A CAR UNUSUALLY PARKED IN A WOODED AREA
MATCHED THAT OF DEFENDANT. THE DEFENDANT NEVER OBJECTED TO THE ADMISSION OF THE
CAR VERSE TESTIMONY BEFORE TRIAL, AT TRIAL OR EVEN ON APPEAL. TO
MEET THIS BURDEN AT TRIAL, THE STATE PIECED TOGETHER THE DEFENDANT'S WHEREABOUTS
ON THE DAY OF THE MURD THROUGH WITNESS TESTIMONY INCLUDING THE CAR VERSE
AND SURVEILLANCE VIDEOS. THE, ON APPEAL DEFENDANT ONLY ARGUED, IN
LIGHT OF THE PROSECUTOR'S 'SUMMATION IN WHICH HE SKILL FLEE AND PROPERLY
ASKED THE JURY TO MEET THE PROPER INSTANCE IN A CIRCUMSTANTIAL CASE.
THE HENDERSON CHARGE INDICATES WHERE NO IDENTIFICATION OF DEFENDANT WOULD HAVE BEEN
IMPROPER. IN FACT, IT IS NOT SURPRISING THAT COUNSEL DID NOT REQUEST THIS
CHARGE BECAUSE IT WOULD HAVE ONLY MISLED THE JURY. ALL PARTIES
MADE VERY CLEAR AT TRIAL THAT THERE WAS NO IDENTIFICATION OF DEFENDANT IN IN THIS
CASE. ON APPEAL, THE MAJORITY WHILE RECOGNIZING THAT
NEITHER PARTY RAISED OR BRIEFED THIS ISSUE, THEY REVERSED THE DEFENDANT'S MURDER
CONVICTION PRIMARILY BASED ON THE CARVER'S NEVER OBJECTED TO TESTIMONY OF THE
CARVER'S TESTIMONY AT TRIAL. FIRST, THE ADMISSIBILITY OF THE
CAR VERSE TESTIMONY WAS NEVER CHALLENGED, NOT, BY DEFENDANT NOT BEFORE TRIAL,
NOT AT TRIAL, NOT EVEN ON DIRECT APPEAL. DESPITE RECOGNIZING THIS
AND REVERSING THE MAJORITY OVER STEPPED THE BALANCE OF PROPER APPELLATE PEL
LAT PROCEDURES AND OVERLOOKING THE FACTS THAT NO OBJECTION CAN BE A STRATEGIC DECISION.
SECOND, AS WAS RECOGNIZED, THE MAJORITY'S REVERSAL OF THE
DEFENDANT'S CONVICTION AND RULING FOR A RULE 104 HEARING, THE ADMISSIBILITY OF THE
TESTIMONY COMPLETES OUR EVIDENCE RULES ON ADMISSION OF RELEVANT EVIDENCE
WITH THE IDENTIFICATION LAW. AND THIRD, THERE IS NO BASIS FOR A REMAND
ON ADMISSIBILITY BECAUSE THE TRIAL PLAYED OUT EXACTLY AS IT WAS INTENDED
TO, THE CAR VERSE AND THE JURORS PROPERLY AN REPEATEDLY WERE INSTRUCTED ON THE
STATE'S BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS
THE PERSON WHO MURED THE VICTIM. FOR ALL THESE REASONS, WE URGE THIS
COURT TO REVERSE THE MAJORITY SUPPORTED DECISION AN REINSTATE THE DEFENDANT'S
CONVICTION. CHIEF JUSTICE RABNER: MS. DOMINGUEZ ARE YOU,
YOU ARE DONE WITH YOUR OPENING STATEMENT I GATHER. VALERIA
DOMINGUEZ: I AM E YES. CHIEF JUSTICE RABNER: WE ARE HE HE WILL ON
AN APPEAL BY A JUDGMENT OF THE APPELLATE DIVISION THAT WOULD REVERSE THE
DECISION ON THE BASIS OF CUMULATIVE ERROR. CAN YOU IDENTIFY
FOR US THE SPECIFIC ERRORS THAT THE APPELLATE DIVISION MAJORITY FOUND.
VALERIA DOMINGUEZ: THE ADMISSION OF THE CARVER'S TESTIMONY, THE REMAND
FOR A 104 HEARING SPEAKS TO THAT AND WHILE THE MAJORITY DOESN'T START THE
PROSECUTOR'S COMMENTS IN SUMMATION, HE DOES DISCUSS -- THE MAJORITY DOES MENTION
THAT A FEW OF THEM ARE PROBLEMATIC IN THE FACT SECTION. IT'S NOT BROUGHT UP IN
THE LEGAL ANALYSIS PART, BUT THAT WOULD BE IS THE SECOND.
THE COURT: SO LET'S START WITH THE SECOND. ARE THERE FINDINGS ABOUT
ANY OF THE FOUR COMMENTS IN WHICH THE APPELLATE DIVISION SAID THIS IS AN
ERROR THAT FACTORS INTO OUR CUMULATIVE ERROR ANALYSIS. VALERIA
DOMINGUEZ: NO, IT WAS JUST BROUGHT UP IN THE BLANK. CHIEF JUSTICE
RABNER: AS TO THE CARVER TESTIMONY, IF I UNDERSTOOD IT CORRECTLY AND I AM LOOKING
AT THE LANGUAGE ON PAGE 20 OF THE OPINION, THE MAJORITY EXPRESSED CONCERN
WITH THE TESTIMONY OFFERED BY THE CAR VERSE, BUT DID NOT FIND THAT THAT TESTIMONY
WAS INADMISSIBLE AND REMANDED FOR A HEARING TO DETERMINE ADMISSIBILITY.
SO WAS THAT AN ERROR THAT THE MAJORITY ACTUALLY FOUND? I
AM TRYING TO FIGURE OUT PRECISELY WHAT THE ERRORS ARE AND THOSE TWO DON'T APPEAR
SQUARELY IN THE LANGUAGE OF THE MAJORITY OPINION. WHAT ELSE
MIGHT THERE BE? VALERIA DOMINGUEZ: I COMPLETELY AGREE WITH
YOUR HONOR IN TERMS OF THE LACK OF ERRORS BEING EXPLICITLY FOUND. THERE WERE UNCLEAR
BASIS ES AN NONE OF THE PROMISE SUMMATION NOR THE CARVER'S TESTIMONY WAS EVER
OBJECTED TO NOT AT TRIAL OR EVEN ON APPEAL. IT IS UNCLEAR WHAT IS THE BASIS FOR
THIS REVERSAL. JUSTICE ALBIN: COUNSEL, WITH RESPECT TO THE
IDENTIFICATION CHARGE, THE MAJORITY AND THE DISSENT WERE IN AGREEMENT THAT THAT
CHARGE SHOULD HAVE BEEN GIVEN. I AM NOT SAYING THE FULL HENDERSON CHARGE, BUT
AN IDENTIFICATION CHARGE SHOULD HAVE BEEN GIVEN, AM I CORRECT ABOUT THAT
DONL. VALERIA DOMINGUEZ: YES AND WE DON'T DISAGREE THAT THE
NO ID, INCLUDE ID OR OUT OF COURT IDENTIFICATION CHARGE WOULD HAVE BEEN
APPROPRIATE IN A CASE WITH NO IDENTIFICATION. HAD IT BEEN REQUESTED, IT
WOULD HAVE BEEN APPROPRIATE. HOWEVER WE DO DISAGREE THAT THE ESTIMATOR VARIABLES
IDENTIFICATION CHARGE UNDER HENDERSON, THAT WOULD HAVE BEEN INAPPROPRIATE IN A
CASE WITH NO IDENTIFICATION. CHIEF JUSTICE RABNER: WE ARE
TALKING ABOUT THE MODEL CHARGE. VALERIA DOMINGUEZ: YES.
JUSTICE ALBIN: THE FULL MODEL CHARGE. SO THE
QUESTION IS WHETHER OR NOT IT INDICATES WHERE IDENTIFICATION IS WHETHER OR NOT
IN A CASE WHERE IDENTIFICATION IS THE ISSUE FRONT AN CENTER WHETHER OR NOT
A FAILURE TO GIVE AN IDENTIFICATION CHARGE IS NOT HARMLESS ERROR.
VALERIA DOMINGUEZ: YES, WELL, WE DISAGREE IN TERMS OF WHICH CHARGE WOULD HAVE BEEN
APPROPRIATE. THE NO IDENTIFICATION CHARGE, CERTAINLY, IN A CASE WITH NO
IDENTIFICATION, NO WITNESS TESTIFYING, THAT IT WAS THE DEFENDANT WHO COMMITTED
THE CRIME. CERTAINLY THE NO ID CHARGE WOULD HAVE BEEN APPROPRIATE.
I WOULD NOTE WHEN YOU LOOK AT THE ERROR ANALYSIS, THE JURY WAS INSTRUCTED THAT
IT WAS THE STATE'S BURDEN AT TRIAL AND THAT IT NEVER SHIFTED TO THE
DEFENDANT. THEY WERE INSTRUCTED THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT
THAT THE DEFENDANT COMMITTED THE MURDER AND THAT WAS REPEATED FOR EACH CHARGE
AND THAT DEFENDANT HAD NO OBLIGATION TO PROVE HIS INNOCENCE. AND
THEN THE JURY WAS ALSO INSTRUCTED AS TO GENERAL CREDIBILITY AND HOW TO EVALUATE
ALL OF THE WITNESS'S TESTIMONY. WE THINK IN LIGHT OF THE CHARGE THAT WAS
GIVEN, THE FAILURE TO SUA SPONTE CHARGE ON NO IDENTIFICATION CERTAINLY WAS NOT
BLANK ON THIS CASE. JUSTICE ALBIN: JUDGE ROAST ROWS EXPRESSED
HER DISAGREEMENT WITH THE MAJORITY ABOUT WHAT SHE THOUGHT WERE IN THE
PROSECUTOR'S SUMMATION. VALERIA DOMINGUEZ: JUDGE ROWS DID GO
THROUGH EACH -- JUSTICE ALBIN: DID SHE MENTION THE PROSECUTOR
'S COMMENT ON DEFENDANT'S FAILURE TO GIVE AN ALIBI DEVENLS? WAS
THAT ONE OF THOSE? VALERIA DOMINGUEZ: YES.
JUSTICE ALBIN: LET'S JUST CONCENTRATE ON THAT FOR A SECOND. IS THAT NOT PROBLEM
ATIC? BECAUSE WE HAVE CASE LAW, UNITED STATES SUPREME COURT
COURT, OHIO VERSUS DOYLE, DEE TAR, MOE HAM MED AND OTHER CASES THAT SAY IN SUMMATION
THE PROSECUTOR CANNOT MAKE A COMMENT ABOUT THE DEFENDANT'S FAILURE TO GIVE
AN EXCULPATORY STORY AT THE TIME THAT HE OR SHE IS BEING QUESTIONED.
THAT IS A LEGAL PRINCIPLE YOU ACCEPT, CORRECT? VALERIA
DOMINGUEZ: YES. ABSOLUTELY, YES, YOUR HONOR. A COUPLE RESPONSES
TO YOUR QUESTION, FIRST I WOULD NOTE THIS WAS NOT OBJECTED TO AT TRIAL SO WE'RE
LOOKING AT A BLANK ANALYSIS AN I WOULD NOTE THAT IN THIS CASE, THE
DEFENDANT'S STATEMENT WHERE THERE IS AN EXCHANGE BETWEEN THE DETECTIVE AND THE
DEFENDANT AS TO HIS ALIBI, THAT WAS INTRODUCED AND PLAYED AT TRIAL SO THE
JURY DID SEE THAT EXCHANGE AND SO THE PROSECUTOR WAS COMMENTING ON THAT EXCHANGE.
TO THE EXTENT -- THE JURY WAS THEN INSTRUCTED THAT IF THE DEFENDANT
DID NOT HAVE A BURDEN, IT WAS THE STATE'S BURDEN TO PROVE BEYOND A REASONABLE
DOUBT ALL OF THE ELEMENTS AND THAT THE BURDEN NEVER SHIFTS TO THE DEFENDANT.
THEY WERE INSTRUCTED TO THAT AFTER THE SUMMATION. THEY WERE
INSTRUCTED THAT DEFENDANT HAD NO OBLIGATION TO PROVE HIS INNOCENCE SO TO THE
EXTENT THAT THE COMMENT MAY HAVE BEEN, MAY HAVE BEEN DISCUSSED THE DEFENDANT'S
ALIBI, IT WAS FAIR COMMENT ON EVIDENCE. JUSTICE ALBIN: CAN YOU
IDENTIFY WHERE IN THE RECORD THAT EXCHANGE OCCURRED? THE
ONE THAT YOU'RE REFERRING TO? VALERIA DOMINGUEZ: BETWEEN THE DETECTIVE
AN THE DEFENDANT? JUSTICE ALBIN: YES, THAT WAS READ AND
DEALT WITH THAT SUBJECT. VALERIA DOMINGUEZ: IT'S THE LAST
PAGE OF THE DEFENDANT'S STATEMENT. I DON'T HAVE THE APPENDIX.
JUSTICE ALBIN: IS THIS THE JULY ONE? IS IT THE ONE WHERE HE IS SAYING
I WANT AN ATTORNEY AND THEN THEY ARE QUESTIONING HIM? SO
THINK ABOUT -- I HAVE THOSE CASES. HE IS REQUESTING AN ATTORNEY AND THEN THEY ARE
SAYING WHY DON'T YOU GIVE US THE NAME OF THAT PERSON. NOW,
HOW ON EARTH CAN THAT COME? ? FIRST OF ALL, EVERYTHING AFTER HE
REQUESTED AN ATTORNEY SHOULD HAVE BEEN LOPPED OFF. THAT'S NO. 1.
AND, NO. 2, HE HAD A RIGHT NOT TO RESPOND TO GIVE HIS SO-CALLED ALIBI DEFENSE
THERE SO HOW COULD THE PROSECUTOR FAIRLY COMMENT ON THAT IN HIS SUMMATION.
VALERIA DOMINGUEZ: YOUR HONOR, THE DEFENDANT DID FILE A PETITION FOR
CERTIFICATION ON THE ADMISSIBILITY OF THAT STATEMENT WHICH THE COURT DENIED. SO
WHETHER OR NOT THE STATEMENT WAS ADMISSIBLE, IT WAS BEFORE THE COURT, IT WASN'T
ADDRESSED IN THE DEVENLS OR THE MAJORITY OPINION DIDN'T FIND AN ISSUE WITH THE
ADMISSION OF THE STATEMENT SO THAT WAS BEFORE THE JURY. TO
THE EXTENT THAT THE PROSECUTOR SHOULD NOT HAVE COMMENTED ON HIS ALIBI DEFENSE,
IT WAS A FLEETING COMMENT. IT WAS A BRIEF COMMENT IN AN OVER 30 PAGE SUMMATION
AND IT CERTAINLY DOESN'T RISE TO THE LEVEL OF BEING SO EGREGIOUS THAT IT DEPRIVED
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. JUSTICE ALBIN: HE
SPECIFICALLY TOLD THE JURY, IF HE -- I AM PARAPHRASING NOW, IF HE HAD A
LEGITIMATE ALIBI, WHY DIDN'T HE CALL THAT WITNESS? THAT IS COMMENTING
STRAIGHT ON. THAT'S A BULS EYE COMMENT ON HIS RIGHT TO REMAIN SILENT; NO?
VALERIA DOMINGUEZ: I WOULD JUST NOTE THAT WHETHER OR NOT THAT SECTION
OF THE STATEMENT SHOULD HAVE BEEN ADMITTED IS NOT BEFORE THE COURT.
JUSTICE ALBIN: WELL, I AM RAISING IT BECAUSE JUDGE ROWS RAISED THE ISSUE IN HER
DISSENT AND THAT COMMENT IN THE SUMMATION REFERRED BACK TO A STATEMENT THAT
PROBABLY SHOULDN'T HAVE BEEN ADMITTED, BUT EVEN FIT WAS IMPROPERLY ADMITTED, THEN
THE NEXT QUESTION IS WHETHER OR NOT THE PROSECUTOR'S SUMMATION HAD A RIGHT
TO COMMENT ON HIS IN VOCATION OF HIS RIGHT TO REMAIN SILENT. E. HE
DOESN'T TELL THE POLICE WHO IS WITH, THAT MYSTERY PERSON WHO HE IS DOING BUSINESS
WITH BECAUSE THAT MYSTERY PERSON DOESN'T EXIST. HE HAD A RIGHT TO REMAIN
SILENT AN NOW HE IS BEING IMPALED ON HIS SILENCE IN HIS SUMMATION.
THE COURT: COUNSEL, MAY I ASK YOU A QUESTION? VALERIA
DOMINGUEZ: YES. CHIEF JUSTICE RABNER: THIS IS A 54 PAGE
TRANSCRIPT THAT I HAVE OF THE STATEMENT. DID THE DEFENDANT ANSWER QUESTIONS
OR DID HE INVOKE HIS RIGHT TO SILENCE AT THE OUTSET. VALERIA
DOMINGUEZ: NO, HE DID NOT. THE COURT: NOT UNTIL YOU GET TO PAGE
48 OR 49 WHERE THE DEFENDANT FIRST SAYS, GET MY ATTORNEY, CORRECT?
VALERIA DOMINGUEZ: YES, YOUR HONOR. CHIEF JUSTICE RABNER:
BEFORE THEN, IS HE QUESTIONED ABOUT THE ALIBI IS THAT HE PRESENTS HIMSELF?
VALERIA DOMINGUEZ: YES. CHIEF JUSTICE RABNER: AND
FROM WHAT I'VE READ IN IT, HE SAYS THINGS LIKE, I WENT TO TRADE SOMETHING.
I MET SOMEONE, WE TOOK A WALK. I DID WHAT WAS NEEDED TO DO AND ALL OF THAT PRECEDES
ANY REFERENCE TO GET MY ATTORNEY, CORRECT? VALERIA DOMINGUEZ:
YES, YOUR HONOR. CHIEF JUSTICE RABNER: AND THE OFFICER IS
SEEKING ADDITIONAL MEAT ON THE BONES ASKING INFORMATION ABOUT THE VAGUE RESPONSES
THAT THE DEFENDANT HIMSELF PRESENTED, CORRECT? DOES THE
OFFICER -- I AM SORRY, DOES THE PROSECUTOR COMMENT ON HIS DIRE FOR AN ATTORNEY DESIRE
FOR AN ATTORNEY. VALERIA DOMINGUEZ: IT IS JUST BASED ON
SPECIFICS OF HIS ALIBI. CHIEF JUSTICE RABNER: DOES THE PROSECUTOR
COMMENT ON HIM INVOKING HIS RIGHT TO SILENCE. VALERIA
DOMINGUEZ: NO, YOUR HONOR. THE COURT: HE MAKES A REFERENCE TO MIRANDA,
WHICH WAS GIVEN ON PAGE 1 AND PAGE 2, RIGHT AT THE OUTSET, ANY PROBLEM
THERE? VALERIA DOMINGUEZ: NO. THE COURT: AND
THEN THE PROSECUTOR COMMENTS, HE WON'T GIVE UP THIS PERSON WHO HE IS DOING
BUSINESS WITH, NOTWITHSTANDING THE MULTIPLE OCCASIONS DURING THE COURSE OF THE
TRANSCRIPT WHERE THE DEFENDANT WAS -- THE DEFENDANT APPEARS TO DANCE AROUND THE
ISSUE. WHY IS THAT A LEGAL ERROR? VALERIA
DOMINGUEZ: I'M SORRY, WHY IS THAT A LEGAL ERROR? CHIEF JUSTICE
RABNER: WHERE IS THE ERROR ABOUT THAT REFERENCE DURING THE SUMMATION?
VALERIA DOMINGUEZ: I DON'T THINK THERE WAS AN ERROR IN TERMS OF THAT COMMENT,
THAT STATEMENT, INCLUDING THE SECTIONS YOUR HONOR REFERRED TO. THOSE WERE
BEFORE THE JURY SO THE JURY DID HEAR THE CLAIMS BETWEEN THE DETECTIVE AN THE DEFENDANT
AS TO HIS VAGUENESS ABOUT AN ALIBI, SAYING HE WAS IN A DIFFERENT LOCATION,
NOT PROVIDING ADDITIONAL INFORMATION, BUT IT IS CERTAINLY OUR POSITION THAT THAT WAS
FAIR COMMENT ON EVIDENCE THAT WAS BEFORE THE JURY. JUSTICE
PATTERSON: AND. AND IN FACT THERE IS NOTHING IMPROPER ABOUT AN
OFFICER ASKING WHEN A DEFENDANT OFFERS A STATEMENT, ASKING ABOUT THE DETAILS OF
THAT STATEMENT, CORRECT? VALERIA DOMINGUEZ: YES, YOUR HONOR.
JUSTICE PATTERSON: THAT'S A VERY DIFFERENT THING FROM SOMEONE
WHO IS INVOKING THE RIGHT TO SILENCE BEING PRESSED TO SPEAK DESPITE THAT IN VOCATION?
VALERIA DOMINGUEZ: ABSOLUTELY. JUSTICE
ALBIN: JUST SO WE HAVE THINGS IN CONTEXT, I AM LOOKING AT PAGE 77 WHERE HE SAYS
HE -- YOU SAY IT'S GAME OVER, CHAJ ME, CALL MY ATTORNEY. THEN
WE'RE DOWN FOUR LINES. WHO YOU WERE WITH SO WE CAN MOVE AS FAR AS
TO STATE HE WASN'T WITH YOU, WHO HE WAS WITH. THAT'S THE SAME
THING, THAT'S THE QUESTION HE DID NOT WANT TO ANSWER. WAS HE
REQUIRED TO ANSWER ANY QUESTIONS? OR DID HE HAVE A RIGHT TO REMAIN
SILENT IN GIVING HIS ALIBI? VALERIA DOMINGUEZ: HE CERTAINLY
DOES HAVE A RIGHT TO REMAIN SILENT AND THE EXCHANGE DID STOP ONCE HE DID.
HE DID SAY HE WAS IN ROEBLING, THAT HE WASN'T ON KINKORA ROAD WHICH IS WHERE THE
CRIME OCCURRED SO THAT EXCHANGE WAS BEFORE THE JURY AND THE PROSECUTOR MAKING
THE FLEETING COMMENT REGARDING DEFENDANT'S ALIBI DEFENSE CERTAINLY DID NOT
RISE TO THE LEVEL AGAIN OF PLAIN ERROR. UNLESS THE COURT HAS
ANY OTHER QUESTIONS, I WILL JUST ASK THE COURT, I WILL BE BACK FOR REBUTTAL,
BUT I WOULD LIKE TO ASK THIS COURT TO MOVE TO RELIEVE THE OPINION AND REINSTATE'S
THE DEFENDANT'S CONVICTION. DANIEL S. ROCKOFF: THANK YOU. YOUR HONOR'S,
BECAUSE THE DIVISION UNANIMOUS AGREED THE TRIAL COURT ERRED BY NOT GIVING JURORS ANY CHARGE
ON HOW TO ABIDE BY THE DISSPUTDED CLIMB THAT EYEWITNESS SAW CLARK THAT THE CRIME SCENE
OF THE THE ORDERED A NEW TRIAL GICH A TOTAL ABSENCE OF GUIDANCE THE I WITNESS PROOFS OF
THE PERPETRATE TORE'S DPENT AT THE, THE IMPROPER PROSECUTOR AND THE VERY WEAK CORROBORATIVE
PROOFS THE THE REAL POSSIBILITY AN INNOCENT MAN WAS CONVICTED AND SENTENCED TO LIFE THAT
PRISON T I'LL BE HIGHLIGHTING THREE SPECIFIC REASONS WINE APPROPRIATE TAILOR JURY
INSTRUCTION ON THE PIVOTAL ISSUE MIGHT HAVE LED THE SDWRUR A ACQUIT CLARK. 1ST AS WAS
JUST DISCUSSED THE ERRED ON THE STATE'S BURDEN TO PROVE THE PURCHASE TRIT OS EVIDENCE
R SUFFICIENT ROY LEE ABLG EVIDENCE YAVD WOULD HAVE COULDN'T TERD THE PROSECUTOR RS
PROSECUTOR IMPROPER BURR SDEN SHIFTING IN SUMMATION THIS BURDEN IS SI MODEL CHARGE WHEN
DENTS AT THE IS IN DISPUTE INCLUDING WHEN THERE ARE EYEWITNESSES BUT NO I WITNESS GIVES
ANY DIRECT IDENTIFICATION. SECOND, TO A CYST THE SGLUR EVALUATING INMEANTLY
WHETHER THE I WITNESS DESCRIPTION MET THE STATE VRS BURR DIDN'T OF PROVING DNT AT THE
WITH SUFFICIENT RELIABLE EVIDENCE, THE JURY UNDER THE CIRCUMSTANCES ARE NEED A MODIFIED
HENDERSON CHARGE AT ANY LORE TO THE FACTS OF CASE ON A SIGN TIFG VARIABLES RELEVANT TO
EVALUATING THE ACCURACY THE EYEWITNESS MEMORIES RCH THE AT ANY LORE CHARGE SHOULD HAVE
EN CLUTDZ THE AT MING NUMB A INSTRUCTION OON FEEDBACK, IN ORDER TO EDUCATE JORNS HOW EYE
WITNESS MEMORIAL WREE CAN BE KRUPTD AND FALSE MEMORIES FORMED CAUTION THE EYEWITNESSES
TO MISS REMEMBER AND MISDESCRIBE. THIRD ERROR, IN THE SAME VEIN, THAT AT ANY
LORE CHARGE SHOULD HAVE INCLUDED SPECIFICALLY AN INSTRUCTION ON HOW EYEWITNESS MEMORY
CAN BE DISTORT WITH PERCEPTION, HE IS SERBLY HOW A WITNESS ESTIMATE OF HEIGHT AND WEIGHT
ARE PRONE TO INACCURACY. I'LL ALSO TOUCH TODAY ON THE LACK OF CORROBORATIVE
EVIDENCE IN THIS KASHGS OTHER CUMULATIVE ERROR SAYS PESHLY IN THE PROSECUTOR'S COMMENTS
NEED FOOR PRELIMINARY HEARING. TO MY IS SENGDZ A MAN TO PRISON ON GUESS,
BUT THAT'S WHAT HAPPENED HERE, IT'S A CASE WHERE THE DENT TFT A PERPETRATOR CONTESTED
OR THE PROSECUTOR AND THE PROSECUTOR TREATED EYEWITNESS DESCRIPTIONS AS THE FUNCTIONAL
EQUIVALENT OF A TRPTZ DIRECT MISS IDENTIFICATION DESPITE STRONGS PROBABILITY OF INACCURATE
OR CORRUPTED MEMORIES. UNDER THOSE CIRCUMSTANCES, THE JURY BADLY NEED BUT DIDN'T
GET THE STANDARD AND SCIENCE FROM THE KOSHT HOW TO EVALUATE THE WITNESS DNT AT THE, WITHOUT
DIRECTION THE JURY WAS LEFT TO GUESS TO YOU HO DECIDE MY CHIENT'S FREEDOM. SO JUSTICE
REQUIRES RI HE REFIRM THE ORDER FOR A NEW TRIAL WAY APPROPRIATE AT ANY LORD INSTRUCTION,
THAT ARE COULDN'T CLUES MIED OPENING STATEMENT THAT 1ST AS THE DISCUSS DURING MY ADVERSARY'S
COMMENTS THAT THE COURT DIDN'T GIVER THE REQUIRED BURDEN INSTRUCTION AND THAT. THE
COURT: THE COURT: MR. ROCKOFF. CAN I ASK YOU TO START IN JUST THE WAY THAT
MS. DOMINGUEZ STARTED, TELL US PRECISELY WHAT ERRORS THE APPELLATE DIVISION MA JUROR
RTS MADE FINDINGS ABOUT, LACK OF A CHARGE, 104 HEARING TO BE CONDUCTED TO DETERMINE
APPROPRIATE CHARGE, WHAT OTHER SPECIFIC FINDINGS OF ERROR ARE THERE IN MAJORITY OPINION?
DANIEL S. ROCKOFF: YES, YOUR HONOR. SO THE APPELLATE DIVISION RECOGNIZED
THAT IN THIS CASE THEY WERE CONCERNED THAT THE FAILURE TO HOLD A 104 HEARING ON
ADMISSIBILITY AND EVEN IF PROPERLY ADMITTED, THE I WITNESS PROOFS OF DEN AT THE IN THE
FORM OF DESCRIPTION TREATS BY THE PROSECUTOR AS THE FUNCTIONAL EQUIVALENT OF A DIRECT
IDENTIFICATION, THE CONCERN THAT WITHOUT INAPPROPRIATE AT ANY LORED STRUKDZ WITH
REFERENCE TO THE HENDERSON VER ABS, THAT THE JURY WOULD CONVICT THE WRONG MAN.
CHIEF JUSTICE RABNER: WE HAVE THAT ONE WE WOULD LIKE K TO START THE ARGUE MENTD BY TICK
OFFER THE ERRORS, REAWOOR REVIEWING A JUDGMENT HEERN I WANT TO FIND OUT WHAT YOU UNDERSTOOD
THAT JUDGMENT CONSISTS OF. SO USER IDENTIFIED FOR US OF THE POTENTIAL NEED FOR A AT
ANY LORE CHARGE A AT ANY LORE CHARGE OF SOME SORT WE'LL KWOM BACK TO THAT. DANIEL
S. ROCKOFF: OKAY. THE COURT: WHAT ARE THE ADDITIONAL HE HAVE ERRORS THAT
MAKE UP THE CUMULATIVE HE ERROR THAT CAUSED A REVERSAL IN THIS CASE. DANIEL
S. ROCKOFF: SO FIRST OF ALL, ALL THREE JUDGES AGREE AND TWO JUDGES IN THE MAJORITY AGREE
THAT THE FAILURE TO GIVE THE BURDEN INSTRUCTION, IN PARTICULAR PROOFBING DENTS AT THE
WAS NOT JUST ERROR BUT A PLAIN ERROR. CHIEF JUSTICE RABNER: SET A, WE'VE
COVERED THAT ONE. SHOULD HAVE BEEN A CHARGE. SOME FORM AVENUE CHARGE BUT A CHAFRNGS
WHAT'S THE SECOND ERROR THAT YOU RELY ON AND CAN YOU POINT US TO IT? DANIEL S.
ROCKOFF: SO DIDN'T GET INTO THIS SPECIFICALLY, I THINK BECAUSE THEY FELT, THE APPELLATE
DIVISION EVEN IF THEY WERE NOT SPECIFIC ABOUT CERTAIN THINGS, THEY HAD THE RIGHT RESULT.
THAT THE COURT WAS RIGHT TO ORDER AN APPROPRIATE TAILORED STRUKDZ BECAUSE OF THE NEEDS
OI WOULD LIKE TO GO INTO THE NATURE THE JURY TO EVALUATE FEEDBACK. CHIEF JUSTICE
RABNER: THAT'S THE SOLE ERROR YOU'VE BEEN ABLE TO DENT TIGHT EVEN THOUGH THEY CALL AT
CUMULATIVE ERROR CASE, AM I CORRECT. DANIEL S. ROCKOFF: CUMULATIVE ERR ROSHGS,
IT WAS NEVER THE OPINION WAS LITTLE AMBIGUOUS, BUT I WOULD AGREE THAT ABOUT THE RESULT.
OTHER PART OF THE CUMULATIVE ERROR THAT THE COURT FOE TUSED ON IN ITS OPINION THE MAJORITY
EMPHASIZED SPECIFICALLY THE DISSENT ALSO ACKNOWLEDGED THE MAJORITY EMPHASIZING
SPECIFICALLY, THE MAJORITY WAS TROUBLED DURING THE FOCUS SFT THE MAJORITY WAS TROUBLE BY
THE PROSECUTOR ASK YOURSELF WHY COMMENT AND AS I GET INTO THE ASK FOR WHY COMMENT, WAS
FULL I AM PERMISSIBLE BURDEN SHIFTING SUCH THAT THE DEALING THE STATE THE STATE'S FAILURE
TO IS IT PROOFRN IDENTITY WAS NOT HARMLESS HERE LN IN ADDITION TO BURDEN SHIFRTING THE
PROSECUTORS ASK YOURSELF WHY XHERNTHS EVEN IF THE DEFENDANT'S, EVEN IF THE DEFENDANTS
INVOCATION OF THE RIGHT TO COUNSEL WERE PROPERLY ADMITTED BY THE PROSECUTOR TELLING THE
YOU'RE TO ASK ITSELF WHY, THAT INFERS ON MY CLIEN'S FIFTH AMENDMENT RIGHT TO COUNSEL.
SO JUST IF I COULD JUMP INTO THAT A LITTLE BIT. I COULD STARTS WITH THE
BUSH DEN SHIFTING OR HOW IT IMPACTS THE RADIO TO COUNSEL, WHATEVER YOUR HONOR'S PREFER,
LE LET'S START WITH RIGHT TO KOUN IS IF THE JURY ASKED ITSELF WHY AT THE PROSECUTOR'S
AND VOCATION WHY CLARK DIDN'T DISPROVE DEN AT THE WHEN THE DETECTIVE PRACTICALLY BEGGED
HIM, INSTEAD OF EX KA PATING HIMSELF CLARK ASKED FOR A LAWYER THREE TIMES. SO SITE CITE
TILL NAN TLOOET 45 N.J. SUPER. AT 537, THE PROSECUTOR IN THIS CASE INVIETSD THE INJURE
TO OBSERVE THE DEFENDANT INVOKD IN RESPONSE TO THE JURY ABOUT HIS WHEREABOUTS AND FOUND
THE PROSECUTOR WAS INVITING THE JURY TO INFER GUILT. I WOULD POINT OUT PEOPLE IN NEW
JERSEY WHO ARE MIRANDIZED MUST BE ABLE TO EMBRACE THEIR FIEVENLG AMENDMENT RIGHT TO A LAWYER
WHEN QUESTIONED WITHOUT FEARING THAT THE PROSECUTOR WERE WILL USE THE PULPIT TO INHE
FRAFRGS CONSTITUTIONAL WRITE IS EVIDENCE OF GUILT SO WHEN THE PROSECUTOR SAID ASK YOURSELF
WHY HE WENT THERE, HE DIDN'T JUST BURDEN SHIFT HE REQUEST FOR A LAWYER AS EVIDENCE OF
GUILT AND THERE IS NO LIMITING INSTRUCTION AS REQUIRED BY FEES STER SO THAT PART OF CUE
LA TIFF HE ERROR. CHIEF JUSTICE RABNER: ADVANCE RG SUGGESTS THAT HE INVOKED
SILENCE AND THE PROSECUTOR WAS FAULTING HIM FOR THAT. RN THERE MANY PASSAGES DWLUT THE
FIRST 48 PAGES OF THE TRANSCRIPT WHERE THE DEFENDANT DOES ANSWER QUESTIONS AND PRESENT
AN ALIBI? DANIEL S. ROCKOFF: I THINK THAT LOOKING ALT HOW THE EVIDENCE
WAS PRESENTED IN CONTEXT AND THEN HOW THE PROSECUTOR'S SUMMATION PICKED UP ON THAT IS
REALLY IMPORTANT HERE. SO THE PROSECUTOR INVITED THE BURDEN SHIFTING, SO
-- CHIEF JUSTICE RABNER: YOU HAVEN'T ANSWERED MY QUESTION, COUNSEL.
DANIEL S. ROCKOFF: I THINK CONTEXT IS IMPORTANT HERE. SO IF THE WAY IT PLAYED
OUT AT TRIAL WAS AT THE VERY END OF INTERROGATION THE LAST THING THE JURY HEARS WHEN THE
INTERROGATION WAS PLAYED WAS THIS PASSAGE: TELL US SKWAKTLY WHERE YOU WERE, YOU CAN EX
XON 8 YOURSELF, THIS IS OVER LIKE TWO PAGES, YOU HAVE AN OUT HERE, IF I WAS SITTING IN
YOUR SEAT AND SOMEBODY WAS TELLING ME I'M GOOD FOR MURDERING THE GUY I WOULD SAY YOU KNOW
WHAT A WITH THIS PERSON, AND SO ON. SO CLARK ASKED FOR AN ATTORNEY AND THEN IMMEDIATELY
THE PROSECUTOR ON DIRECT DID MR. CLARK TELL YOU WHO HE WAS WITH. AND THAT'S AT 17720,
LINES 20 TO 22 AND THE ATTORNEY INVOCATION WAS AT PAGE 174 THROUGH 176. SO IMMEDIATELY
THE PROSECUTOR IS PICKING UP ON DID MR. CLARK TELL YOU WHO HE WAS WITH. SO IT'S OBVIOUS
IN CONTEXT THAT'S REFERRING TO THE ATTORNEY INVOCATION. THAT'S IMMEDIATELY PRIOR TO
THAT, THAT'S WHAT THE JURY JUST HEARD. CHIEF JUSTICE RABNER: ARE YOU REFERRING
TO THE CLOSING ARGUMENT NOW OR TESTIMONY DURING THE COURSE OF THE TRIAL. DANIEL
S. ROCKOFF: THAT'S DIRECT. BUT WHAT I'M SAYING -- CHIEF JUSTICE RABNER:
OH THAT'S, I NAUTD THE ARGUMENT YOU WERE ADVANCING WAS THAT THERE'S ERROR IN THE
SUMMATION COMMENT, NOT TRIAL TESTIMONY. DANIEL S. ROCKOFF: I THINK THS'
BOTH, BECAUSE THE PROSECUTOR IS IN DIRECT, SO BLAU THE ATTORNEY AND IMMEDIATELY THE
PROSECUTOR IS PICK UP ON AND THAT'S WHERE THE CLARK DIDN'T TELL YOU WHO HE WAS WITH, WHEN
THE PROSECUTOR IS REFERRING BACK TO THAT IN SUMMATION, YOU KNOW, YOU HEARD HIS STATEMENT,
THE DETECTIVE PRACTICALLY PEGGED HIM QUOTE-UNQUOTE. WELL, PRACTICALLY BEG CHART
CLARK IS AGAIN AT THE VERY END OF THE INTERROGATION AND THE PROSECUTOR SAYING IN
SUMMATION, YOU KNOW, HE SAID "YOU KNOW WE'LL GO OUT, TRACK IT DOWN, AGAIN REFERRING TO
THE DEBT'S COMMENTS ITS VERY END OF THE INTERROGATION JUST BEFORE THE, JUST BEFORE MY
CLIENTS INVOKED. THEN THE CLIENT SAID IN SUMMATION, "AS A RESULT OF THAT QUOTE,
DESPITE BRAK CLEE LEG BEGGING HIM "CLARK STILL BEEN WON'T GIVE IT. ASK YOURSELF WHY.
SO IT'S CLEAR IN CONTEXT THE WAY THE INTERROGATION ENDED AND BECAUSE OF THE
PROSECUTOR PICKING UP ON THAT POINT IMMEDIATELY IN DIRECT, HIS FIRST QUESTION ON DIRECT
EXAMINATION AND THEN IN SUMMATION SAY, WELL, THE POINT WHERE THE DETECTIVE PRACTICALLY
BEGGED HIM OBVIOUSLY REFERRING TO THE END, IN FACT THE PROSECUTOR ACTUALLY QUOTES THE
DEBT'S COMMENTS IN SUMMATION, GO OUT AND TRACK IT DOWN AND SAY CLARK STILL WON'T GIFT
YOU. ASK YOURSELF WIECHLT. SO WHAT I'M TRYING TO SAY IN CONTEXT THE IT
IS EXTREMELY OBVIOUS THAT THE PROSECUTOR IS REFERRING IN SUMMATION TO THE VERY END WHEN
THE DETECTIVE IS PRACTICALLY BEGGING THE DEFENDANT TO DISPROVE IDENTITY AND THE DEFENDANT
DOESN'T DO IT. HE INVOKED. SO IF THE JURY ASKED ITSELF WHY, A CENTRAL FOCUS OF DELIBERATIONS
WOULD BE, AND, WHY CLARK DIDN'T DISPROVE DEN AT THE WHEN HE ASKED FOR AN ATTORNEY. AND
THAT'S BOTH AGAIN, IT'S BOTH BURDEN SHIFTING AND IT IS INFERS AND THE RIGHT COULD COUNSEL.
CHIEF JUSTICE RABNER: I UNDERSTAND YOUR POSITION WITH RESPECT TO WHAT OCCUR
AT THE VERY END OF THE TRANSCRIPT. MY KEGS WAS AND IF YOU CAN PLEASE ANSWER, ISN'T IT
APPROPRIATE TO COMMENT ON MULTIPLE EVASIVE ANSWERS THAT THE DEFENDANT HIMSELF
VOLUNTEERED WELL BEFORE THAT LAST REFERENCE TO COUNSEL? DANIEL S. ROCKOFF:
NO, YOUR HONOR. THE PROSECUTOR CAN COMMENT ON WHAT THE DEFENDANT SAID DURING THE STATEMENT.
BUT AT LEAST HERE WHERE THE COMMENTS REFER SO DIRECTLY IN REFERRING TO THE DETECTIVE
PRACTICALLY BEGGING HIM AND WHERE DETECTIVES QUESTIONS OCCUR RIGHT AFTER THE DETECTIVE
IS IN THAT MANNER PRACTICALLY BEG THE DEFENDANT AND THE PROSECUTOR SAYS WELL HE'S STILL
DESPITE THAT DIDN'T GIVE UP EXCULPATORY EVIDENCE, DISPROVING IDENTITY, ASK YOURSELF WHY.
THAT REFERENCE TO THE NOT ONLY THE ENTIRE STATEMENT BUT MORE HE CAN'T DOCTORLY TO IT I
AM PERMISSIBLE, IMPERMISSIBLY REFERRING TO THE INVOCATION OF THE RIGHT TO COUNSEL AND
INVITING THE JURY BY SAYING ASK YOSHZ WHY, INVITING THE JURY TO BOTH BURDEN SHIFT AND TO
INFRINGE AND TO INFER GUILT FROM THE INVOCATION OF THE RIGHT TO COUNSEL.
JUSTICE ALBIN: SO, COUNSEL, PICKING UP ON CHIEF JUSTICE'S QUESTION, BEFORE HIS INVOCATION
OF HIS RIGHT TO COUNSEL, CAN YOU IDENTIFY WHERE IN THE TRANSCRIPT HE WAS SPECIFICALLY
ASKED ABOUT HIS, THE ALIBI WITNESS? IF YOU KNOW? DANIEL S. ROCKOFF: OH,
I'M SORRY. JUSTICE ALBIN: IF IT'S THERE. AND IF HE RESPONDED IN ANY WAY.
DANIEL S. ROCKOFF: YOU KNOW WHAT, BECAUSE I FOCUSED THE PLACE I FOUND AT THE
VERY END I DON'T HAVE A SPECIFIC CITE, IT'S IN THE MIDDLE OF THE TRANSCRIPT. BUT I THINK
MY OVERALL POINT HERE IS THE PROSECUTOR'S DIRECT AND THEN AGAIN COMMENT IN SUMMATION SO
HEAVILY REFERRED TO WHAT'S HAPPENEDING AT THE END WITH PRACTICALLY BEGGING THAT IS SO
CLEARLY PLAIN ERROR HERE. SO I WOULD JUST JUST SGOE BACK, I TALKED ABOUT THIS A LITTLE,
BUT THE POINT OF THE MODEL CHARGE ON BURDEN IS IT FOCUSES THE JURY'S ATTENTION ON WHETHER
THE STATE PRESENTED ITS OWN SUFFICIENT RELIABLE EVIDENCE OF DEN AT THE AND THE STATE BURDEN
TO PROVE IDENTITY ISN'T SATISFIED, JUST BECAUSE THE DEFENDANT DIDN'T DISPROVE IDENTITY.
AND THAT IS AN INSTRUCTION THAT THE ULTIMATE MEMBERS OF COURT IS A CONTINUING NECESSARY,
DISSENT PUTS IT FUNDAMENTAL CENTRAL RILE TRIAL ISSUE, MOST OFTEN REVERSIBLE ERROR NOT
TO GIVE IT WHERE THERE IS IT IS A FUNDAMENTAL ESSENTIAL TRIAL ISSUE, EVEN AB SEN THE
SPECIFIC REQUEST. TRIAL COURT IS UNAT LIBERTY TO HOLD THAT PARTICULAR INSTRUCTION AND
WHEN THERE'S SO CLEARLY BURDEN SHIFTING, OF THE KIND THAT WE SEE IN THE PARTICULAR'S DIRECT
AND SUMMATION IN THIS CASE, THE FAILURE TO GIVE IT, THE FAILURE IS CLEARLY --
JUSTICE ALBIN: CAN I ASK YOU A QUESTION IT SEEMS LIKE YOU'RE MAIN ARMTH. THIS 104 HEARING,
WHY DID THERE HAVE TO BE A 104 HEARING? YOU HAD 2 WITNESSES WHO TESTIFIED TO LOOKING
DOWN THE STREET FROM THE CAR WHERE A DEAD BODY IS FOIND AND THEY'RE SGIFG A DESCRIPTION
OF OH THEY WERE DRIVING, A PERSON WAS WALKING AWAY. WHAT, NUMBER ONE, WHY
IS A 104 HEARING NECESSARY AND 12, WHY WOULD ANY JUDGE WITHHOLD THAT INFORMATION FROM THE
JURY? I DON'T, THAT'S WHAT I'M TRYING TO NECESSARY. DANIEL S. ROCKOFF:
ROCK MY MAIN POINT A NEW? #2R50I8 IS RIRD IS THE FAILURE TO GIVE A MODIFIED I DO NEED
GET TO BUT TO ANSWER YOUR QUESTION, I DO THING THE COURT WAS RIGHT TO REQUIRE PRELIMINARY
HEARING. THE PRELIMINARY HEARING SHOULD HAVE BEEN FOR 3 REASONS. I THINK GOING INTO
MORE DETAIL ABOUT THE INSTRUCTION WILL CLARIFY THE NEED FOR A HEARING, BUT TO PREVIEW
IT, EVIDENCE OF FEET BACK, EVIDENCE HERE THAT -- RB. CHIEF JUSTICE RABNER:
KOEFRN SELL, LELTS' GET TO THAT IN A MINUTE IN #30B8 WROK ROCK OKAY. RAL.
CHIEF JUSTICE RABNER: FOLLOWING UP JUSTICE RAILROAD OBJECTS TO THE ADD MISS OF THE
CARVERS 278 PUT ASIDE WHETHER THERE SHOULD HAVE BEEN A CHARGE ROCK RK I THINK WE HAVE ENOUGH
INFORMATION AT TO HAD THAT POINT TO DETERMINE INADMISSIBILITY. CHIEF JUSTICE
RABNER: STRAIGHTFORWARD EVIDENTIARY QUESTION AS I UNDERSTAND IT. THE EVIDENCE IS RELEVANT,
HEIGHT, WEIGHT, LOCATION, DATE, THAT CLEARLY SATISFIES RULE FER 01, WOULD YOU AGREE.
DANIEL S. ROCKOFF: YES, YOUR HONOR: CHIEF JUSTICE RABNER:
HOLD ON. SO THEN YOU GO TO THE 403 BALANCE. CAN YOU TELL US WHAT'S PREJUDICIAL ABOUT
THAT TESTIMONY? JUST THE TESTIMONY, PUT ASIDE THE QUESTION OF A CHARGE.
DANIEL S. ROCKOFF: YES, YOUR HONOR. LET'S FOCUS ON THE POTENTIAL FOR FEEDBACK ERROR --
CHIEF JUSTICE RABNER: I WOON TO STAY AWAY FROM THE CHARGE SCHT THE QUESTION
ISN'T WHAT KIECH INSTRUCTION SHOULD THE GIVEN HAVE GIVEN THE JURY, WE'RE ASKING YOU WAS
THE EVIDENCE ADMISSIBLE? ARE YOU ARGUING THAT THE CARVERS SHOULD NOT HAVE BEEN ALLOWED
TO TESTIFY AT ALL BECAUSE THEIR EVIDENCE SHOULD HAVE BEEN BARRED UNDER SOME LEGAL THEORY
AND IF SO, TELL US WHAT THAT IS. DANIEL S. ROCKOFF: I THINK IT WOULD BE A
STRAIGHTFORWARD A 104 HEARING, I THINK IT WOULD BE A STRAIGHTFORWARD JUST THE PREJUDICE
JOUTS WEIGHED THE PROEP TIFF VALUE. HERE THE QUESTION WOULD BE, IF THE COURT
FINDS THAT THE RISK OF INFORMATION -- EXAMINING, THERE'S A PRELIMINARY HEARING SO FOR
FEEDBACK IF THE RICK OF MISINFORMATION FROM IMPERMISSIBLY SUGGESTIVE FEEDBACK OUTWEIGHS
ANY PROBATIVE VALUE AND IF WE'RE HEARING TESTIMONY ON THE TYPE OF FEEDBACK THAT
OCCURRED IN THIS CASE, THEY KNOW IT COULD POTENTIALING BE AWARDED I AM PERMISSIBLE.
OTHERWISE THE COURT SHOULD PROVIDE A TAILORED STRUKDZ. SLARMLY IN A HEARING THE COURT
SHOULD EXAMINE AND THIS, THE JUST JUST, AFFIRMING AN APPELLATE DIVISION OPINION REQUIRING
A 104 HEARING FOR TESTIMONY ON THESE FIEP OF ESTIMATES. SO THE COURT ENDORSED TESTS
AND THAT NEEDS TO HAPPEN HERE WITH HEIGHT AND WEIGHT AS WELL, JUST DISCUSSED EX SENTENCE
TIFR UNTIL BAR REEN IN A -- JUSTICE ALBIN: LETS ASSUME, LOOK, YOU HAVE
A COUPLE DRIVING A CAR AND THEY OBSERVED SOMETHING. LELTHS' SAY THEY EVEN TALK WITH
EACH OTHER, THAT WOULD BE THE MOST NATURAL THING IN THE WORLD ABOUT WHAT THEY SAW.
DANIEL S. ROCKOFF: RIGHT. JUSTICE ALBIN: BUT THESE ARE WITNESSES TO
SOMETHING AT OR ABOUT THE TIME OF THE CRIME. AND YOU'RE TELLING ME THAT THERE SHOULD BE
A 104 HEARING TO BHORNT THEY SHOULD BE PERMITTED TO WHETHER OR NOT THEY SHOULD BE PERMIT
TED TO TESTIFY? AK ROCK RK I WOULD GROW WITH THE APPELLATE DIVISION IT WOULD BE OPTIMAL
TO HAVE ONE BUT I RECOGNIZE IN HENDERSON THE COURT SAID EVEN WHEN THERE IS A STATEMENTS
MOST EVIDENCE SHOULD BE ADMITTED, SO I WOULD FOCUS THIS COURT ON THE NEED FOR A TAILORED
INSTRUCTION. I DO THINK A 104 HEARING WOULD HAVE BEEN OPTIMAL BECAUSE THE COURT COULD
NUMBER ONE ASSESS POTENTIAL PREJUDICE AND IN BAR REEN IN A THOSE TYPES OF STRIKZS CAN,
SHOULD BE SUBJECT TO A 104 HEARING AND THERE'S AT LEAST A POSSIBILITY THAT THEY COULD BE
RENDERED INPERMISSIBLE WHEN THE COURT -- JUSTICE ALBIN: THEY DIDN'T MAKE
AN DENTS OCCASION. I KNOW THE PARTICULAR'S SUMMATION SAID THEY MADE AN IDENTIFICATION.
THEY GAVE DESCRIPTIONS. THEY WEREN'T EVEN CONSISTENT WITH EACH OTHER. THE TWO
WITNESSES WERE NOT EVEN CONSISTENT. THEY WERE GIVEN DIFFERENT STRIKZS. DANIEL
S. ROCKOFF: SO THE PROSECUTOR ARGUED THAT THE I WITNESS IPGS WERE THE I D CRIME RIGHT,
I THINK THAT'S REALLY WHAT DISTINGUISHES THIS CASE, THITS NOT A CASE WHERE THE SKRIPSS
ARE A BLUR AND THE PRSH SAID YOU CAN'T RELY ON THOSE, HE'S SAYING THAT IT'S TOO MUCH OF
A COINCIDENCE, THESE DESCRIPTION, DESPITE GOES TO REASONABLE DOUBT THE PROSECUTOR IS MAKE
THE ARGUMENT THAT THESE DESCRIPTIONS ARE FUNCTIONAL QUITE FRANKLY WLENT OF A
IDENTIFICATION, A DIRECT IDENTIFICATION OF CLARK THAT THE CRIME SEEN. THAT'S WHAT THE
PROSECUTOR SAID, TOO MUCH OF A COMPANY VINCE BENS DENSE, THE DESCRIPTION MATCHES --
CHIEF JUSTICE RABNER: COUNSEL THIS IS NOT AN DEN OCCASION CASE. WOULD YOU AGREE WITH
THAT? ROCK RK I AGREE, YOUR HONOR'S, I AGREE -- CHIEF JUSTICE RABNER: YOU
HAD WITNESSES SAY WE CAN'T IDENTIFY THE PERSON AND WE HAVE THE PARTICULAR IN SUMMATION
MAKING THAT PRECISE SXHENT, THEY COULDN'T IDENTIFY HIM. SO THAT TAKES IT OUT OF THE
REALM OF THE TRADITIONAL IDENTIFICATION TEST, WOULDN'T YOU AGREE? HE HAVE.
DANIEL S. ROCKOFF: SO, YOUR HONOR I WOULD SAY NOTWITHSTANDING THE LACK OF IDENTIFICATION
HERE, THE PROSECUTOR'S COMMENTS -- THE JURY'S DELIBERATION REQUIRED THERM TO ASSESS THE
MANY VARIABLES THAT, THE ACTORS I WITNESS MEMBERS AVENUE CULPRIT -- CHIEF JUSTICE
RABNER: MAY I STOP YOU THERE. VARY ABS THAT HENDERSON PRESENTS DZ ARE PRESENTED IN THE
CONTEXT OF THE CASE ABOUT THE RISK OF MISS DENTS OCCASION. IF THERE'S NO IDENTIFICATION,
DO THOSE HENDERSON VARIABLES APPLY. DANIEL S. ROCKOFF: YES. IN A DAYS LIKE
THIS. CHIEF JUSTICE RABNER: MAY I FOLLOW UP. DANIEL S. ROCKOFF:
YES. CHIEF JUSTICE RABNER: IF THEY APPLY IN A CASE LIKE THISHGS WHERE WITNESSES
ARE DESCRIBING HOOIT, WEIGHT, LOCATION, ETCETERA, CLOTHING, THEN I'D LIKE TO YOU TELL
US THE LIMITS OF YOUR ARGUMENT, WOULD THEY APPLY AS WELL AND IN A CASE WHERE WITNESSES
SAID I SAW A CAR AND THEY IDENTIFIED MAKE, MODEL AND COLOR. THE SAME KIND OF HENDERSON
VARIABLES? DANIEL S. ROCKOFF: NO, YOUR HONOR. CHIEF JUSTICE
RABNER: HOLD ON. DANIEL S. ROCKOFF: TO BE CLEAR THERE ARE OBVIOUS LIMBS
TAMENTS OF WHEN THE JURIES WOULD NEED MODIFIED HENDERSON CHARGE, THE DESCRIPTION YOU GAVE
ME PIE A CAR WHEN THE ARE NOT OF THE ALLEGED PERPETRATOR DIRECTLY OR SOMETHING OR SOMEONE
ELSE THE FURTHER DOWN THE CHAIN THE DESCRIPTION ARE FROM IDENTITY THE LESS HIGH THE PROVEN
DEPARTMENT AT THE SO EVEN IF A WITNESS SAYS, YOU KNOW, I SAW A PARTICULAR CAR, DESCRIBE
THE CAR AND THEN LATER I A A SIMILAR CAR IS SEEN AT DEFENDANT'S HOME, EVEN IF THE DESCRIPTION
SGS ARE GENERALLY ALIKE, EVEN IF THEY, THEY COULD MATCH, THERE'S A LOGIC HERE IS SOMEWHAT
REMOVED. THE FURTHER REMOVED THE CHAIN ARE SKRINGS ARE FROM IDENTITY, UNLESS WILL IS A
NED FOR A CHARGE ON THE ACCURACY OF DESCRIPTION, WE'RE REEL CONCERNED ABOUT IS IS THIS
EVIDENCE PRECISE ENOUGH TO PROPERLY IDENTIFY THE DEFENDANT, BUT EVERYONE UNDERSTANDS EVEN
IF A CAR IS THE SAME IN TWO DIFRNT PLACES, EVEN IF IT LOOKS LIKE IT MATCHES FSHGS THERE
WOULD BE COULD BE A NUMBER OF REASONS FOR. IT DOESN'T GO NECESSARILY TO IDENTITY.
SOETD TIMES OF LIPT TAGS ON WHEN YOU WOULDN'T NEED A MODIFIED HINDER SON CHARGE
LIKE IN A CASE LIKE THIS ONE, SO WHERE THE DENTS AT THE OF THE PERPETRATOR IN ISN'T DISPUTE
AS ALL, EVEN IF WILL IS EYEWITNESS AND THE DEFENDANT SAID, YOU'RE RIGHT, I WAS THERE,
IT WAS SELF-DEFENSE, OBVIOUSLY THERE'S NO NEED TO INSTRUCT THE INJURE IN THAT WAY. WHEN
THERE ARE NO EYEWITNESSES -- JUSTICE ALBIN: I'M SORRY, WE'RE MOVING FROM
THE QUESTION DID THEY HAVE A RATE TO TESTIFY TO WHAT SORTS OF THE IDENTIFICATION CHARGE.
SO LET'S START WITH THESE TWO WITNESSES WHO ARE TESTIFYING TO RELEVANT EVIDENCE.
DANIEL S. ROCKOFF: RIGHT. JUSTICE ALBIN: OKAY, IN TIME AND IN SPACE, THEY HAVE
A ROIT TO TESTIFY. FOR GET ABOUT THE CHARGE, THIS WHAT THE CHIEF WAS SKUG, IT'S RELEVANT
EVIDENCE, I CAN'T IMAGINE HOW UPTSD 403 TWO PEOPLE WHO WF AT OR ABOUT THE SCENE OF THE
KILLING IN FIEM TIME AND SPACE WAS NOT BE PERMITTED TO TESTIFY. DANIEL S.
ROCKOFF: RIGHT. I MEAN SO THE PROSECUTOR PROBLEM WITH FEEDBACK IS THAT WE KNOW FROM
HENDERSON AND I THINK THIS GOES TO BOTH POTENTIAL ADMISSIBILITY PROBLEMS IN A CHARGE, WE KNOW
THAT WHEN EYEWITNESSES ARE SHARING EACH ON THE ABOUT WHAT THEY OBSERVE THE, THEY AND REPORT
OF HOW THEY VIEWED THE EVENT. JUSTICE ALBIN: THAT GOES TO WEIGHT. YOU'RE
TELLING ME THAT THERE COULD HAVE BEEN AN ORDER BARRING THEM FROM TESTIFYING MEERL BECAUSE
THEY SPEAK WITH EACH OTHER? RACK RACK IN GAR REEN IN A THE COURT IS TALK ABOUT THE NEED
FOR A 104 HEARING, LIKE COULD THEY REALLY, YOU KNOW, COULD, COULD THE PARTICULAR VARY
ABS THERE, ARE THEY TOO PRESS HE DISED TO BE ADMITTED, THERE'S ALWAYS THE POSSIBILITY
THAT DESCRIPTIVE TESTIMONY COULD JUST BE JUDGED AS TOO PREJUDICIAL AND TOO HIGH RISK.
TO THE EXTENT THIT OUTWEIGHS THE PROBATIVE VAL YUSHGS I'M DEFINITELY SAYING BE IT DOESN'T
HAPPEN IN EVERY SIZE, IT'S A BLTS POCHLT. CHIEF JUSTICE RABNER: YOU AND
COUNSEL THE APPELLATE DIVISION DIDN'T REEFRP THIS FINDSING IN THIS CASE. DANIEL
S. ROCKOFF: NO THEY SAID VERY CLEARLY T NOT ADMISSIBILITY, THEY JUCHT ORDERED A 104 HEAR
ING RAKS RAKS. CHIEF JUSTICE RABNER: THEY SAID IT'S APPROPRIATE TO REVESHS
THE CONVICTION BECAUSE SEFD MAY NOT BE ADMISSIBLE? DANIEL S. ROCKOFF:
NO, WELL, THE APPELLATE DIVISION, FIRM THE APPELLATE DIVISION DIDN'T DO THMENT THEIR
HOLDING THERE #23450EDED TO BE A NEW TRIAL REGARDLESS OF ADMISSIBILITY BECAUSE OF THE
LACK OF PROBE YIT TAILORED INSTRUCTION. I WOULD SAY HERE WE'RE, THIS COURT JUST AFFIRMED
IN GAUR REEN IN A ON THE NEED FOR A 104 HEARING ON DESCRIPTIVE TESTIMONY, AT THE VERY
LEAST THERE SHOULD BE A 104 HEARING ON THE REL VEPT DESCRIPTIONS FOR SIMILAR REASONS.
BUT MY MAIN POINT AGAIN IS THAT'S NEED TO BE AN APPROPRIATE TAILORED INSTRUCTION.
CHIEF JUSTICE RABNER: AND THE TAILORED INSTRUCTION THAT YOU ARGUED IS APPROPRIATE IN
THIS CASE INCLUDES NO FEWER THAN 12 FACTORS FROM HENDERSON, IS THAT CORRECT? ROCK RK I'D
LIKE TO FOCUS ON THE NEED FOR TWO HERE. SO THE FIRST I WANT TO JUST DISCUSS WHICH SHOULD
HAVE BEEN GIVEN. CHIEF JUSTICE RABNER: RAUD ADVANCING THE 12, YOU WANT TO
DRAW OUR A TENSION TO, DO YOU BELIEVE A 12 FACTOR INSTRUCTION WAS APPROPRIATE HERE WHERE
THE WITNESS COULD NOT AND DID NOT IDENTIFY THE DEFENDANT? DANIEL S. ROCKOFF:
I THINK IT SHOULD BE A MINIMUM INSTRUCTION ON FEEDBACK AND AS PER WHAT WAS SDUCHG GAUR
REEN IN A, AN INSTRUCTION ON, AN INSTRUCTION ON THE OTHER VARY ABS THAT COULD PRODUCE
INFORMATION SKAUSING EYEWITNESS TO PERCEIVE AT MINIMUM THE HEIGHT AND WEIGHT OF STRANGERS.
AND THAT'S A CHARGE BY NECESSITY REQUIRED A JURY TO CONSIDER ESTIMATED VARIABLES, IN
AMONG THE TRIAL THAT COULD HAVE CAUSED A MISPERCEPTION. SO I THINK LTHS' TOUGH TO
LOOK AT THOSE IN PARTICULAR. 3RD -- CHIEF JUSTICE RABNER: CAN WE GO BACK
TO THE HYPO YOU AND I DISCUSSED EARLIER ABOUT A CAR, MAKE, MONTHLY, COLOR, ETCETERA.
DANIEL S. ROCKOFF: YEAH. CHIEF JUSTICE RABNER: AND THE WITNESS
SAID THERE WAS SOMEBODY DRIVING A CAR, THERE WAS A SINGLE PERSON DRIVING THAT CAR, YOU
DID ALL THOSE HENDERSON VARY ABS IN BECAUSE WE ARE NOW ONE STEP CLOSER. DANIEL
S. ROCKOFF: IT'S A FACT BASED ANALYSIS MUCH I THINK THE CLOSER YOU GET TO THE DESCRIPTIONS,
THE CLOSER YOU GET TO THE PROSECUTOR RELYING ON THE DESCRIPTIONS IS THE FUPGS NULL EQUIVALENT
OF A HE HAVE THAT'S THE GUY TYPE OF STATEMENT PROVING DEN AT THE, THE NEED IS FOR AR
MODIFIED HENDERSON CHARGE. THERE'S ALSO MORE OF A BASIS OR IN CONTRAST,
KOIT WOULD THE KNOB A BASE SFOR A MODERATE HENDERSON CHARGE WHEN THERE'S NO BASIS TO
THIRNG AS IN HERE THE MEMORY WAS DISSORED AFRT FACT BY FEEDBACK LAW ENFORCEMENT OR DISPORT
TORTD BY THE PASSAGE OF MANY DAYS UNTIL DESCRIPTIONS WERE GIVEN. IT ALSO MAY NOT BE
APPROPRIATE IN SUCH A CASE, THE ONE YOU DESCRIBED, TO GIVE A MODIFIED HENDERSON CHARGE
WHEN THERE'S NO BASIS TO THINK, AS HERE, THE MEMORY WAS DISORRED BECAUSE OF I AM
INACCURATE MISS PERCEPTIONS FROM SCIENTIFIC RYE SEARCH, EYEWITNESSES ARE PRONE TO PERCEIVE
AN INACCURATELY LIKE HEIGHT AND WEIGHT. OTHER LIMITATION AND IN THE MODIFIED HINDER SON
CHARGE SHOULD BE GIVEN IN A CASE LIKE THIS ONE, WHEN THE PROSECUTOR AGAIN ISN'T RELYING
ON THE DESCRIPTION, WHEN THE DESCRIPTIONS RFRN DIRECT AND WE ALREADY DISCUSSED THAT A
BIT, BE WHEN THERE'S A VIDEO OF THE PERPETRATOR CHIT AGO I AM KROO. SO THAT'S THE OPPOSITE
OF HEN DR SON, HENDERSON TALKS ABOUT HOW MEMORY IS NOT LIKE A VIDEO. SO IF THERE'S VIDEO
THE PERPETRATOR ACTUALING COMMITTING A CRIME, JURORS ABILITY TO ANALYZE THE MEMORY BECOMES
PROPORTION KNITSLY LESS IMPORTANT. AND AGAIN WHERE IDENTITY OF PERPETRATOR ISN'T IN
DISPUTE AT ALL OR THERE ARE NO EYEWITNESSES. EVEN IF DEN AT THE IS IN DISPUTE, IF THERE'S,
I DON'T KNOW, THERE'S WHO SETS THE FIRE, PEM REWOULD NOT BE AN ISSUE AND IT WOULD NOT
BE A NEED FOR THE TYPE OF CHARGE LIESHG THE ONE THAT WAS NECESSARY IN THIS OCCASION.
SO I WOULD LIKE TO TURN TO WHY A FEEDBACK CHARGE WAS CRITICAL HERE T I WOULD
BEGIN BY REMINDSING THIS COURTS OF THE DISCUSSIONS IN HENDERSON THAT FEEDBACK CAN
CAUSE A PERSON TO CAUSE A FALSE MEMORY OF DETAILS THAT HE AND SHE NEVER REFSHED ITS HEN
DERSON REMAND HEARING THE COEYEWITNESS INFLUNED MEMORY AND RECALL. I WOULD REMIND THE
CASE OF HENDERSON PEOPLE OF A CAR #2450E6 AND SMP VIEWERS GOT TO WRAED AN ACCURATE DESCRIPTION
OF THE CULPRIT, THERE'S AN IP ACCURATE JIPGS OF THE SFRAT VERSUS B B HERE THEY ALL BROUGHT
OUT THEIR OWN INSCRIPTIONS AND ONE-THIRD INCLUDED FALSE DETAILS IN THEIR OWN DESCRIPTIONS,
ODD PARTICULAR PROBABLY FEEDBACK CORRUPTING DESCRIPTIONS AFTER THE FACT, CONFIRMED IN
EPIC IPGS RS STR COWITNESS FEEDBACK. IT'S LIKE THE LAW A LITTLE HELP FROM MY FRIENDS,
DON'T MAKE MY BROWN EYES BLUE. THESE WITNESS ALL MISS IPG INFORMATION FROM A DWOE QUIT
NESS, COWITNESS MISINFORMATION MEANS LESS ACCURATE RECALL, EFFECT IS IMMEDIATE SJTD EFKTD
IS PARTICULARLY STRONG TWHT COWITNESS DISCUSS DIRECTLY. LGS, EYEWITNESSES
ARE WHO ROMANTIC PARTNERS SHIPS ARE SIGNIFICANTLY MORE LIKELY AS HERE TO INCORPORATE
INFORMATION OBTAINED SOLELY FROM THE COWIT NOSE. LETS BRING IT BACK TO THIS
CASE WHAT WE KNOW ABOUT THIS CASE, SAN DOCTOR AND JEFF OF RECARVER THEY LIVE TOGETHER,
GAVE EACH OTHER FEEDBACK OVER ONE AND A HALF YEARS, SANDRA TESTIFIED SPECIFICALLY THAT
THEY SDIFD WHO THEY SAW BEFORE THE RECORDED STATEMENTS EVEN HAPPENED, BEFORE THE
DESCRIPTIONS WERE EVEN GIVEN, THEN JEFFREY ALSO TESTIFIED HE DISCUSSED WHO THEY SAW AGAIN
BEFORE TRIAL. AND THE RECORD SHOWS WHY ARGUE NOT JUST FEEDBACK OH KIRD, BUT THAT THE
FEEDBACK ALSO EXPLICITLY THE POSSIBILITY OF MISINFORMATION IN A AMERICAN THAT COULD HAVE
LED TO A WRONGFUL CONVICTION. LET'S LOOK THROUGH THE SKAL MEL SANDRA TESTIFIED
SHE INITIALLY PERCEIVED THE PERSON DEFINITELY WAS NOT BLACK. SO TO BE CLEAR IT'S IN THE
A BLACK MAN. AND THEN SHE VOICED EXCULPATORY OPINION TO HER HOBT HUSBAND BEFORE
DESCRIPTION WERE GIVEN TO OFFICERS AND SHE SAID HER HUSBAND GAVE HER FEEDBACK THAT CAUSED
HAD TOWER RETREAT FROM HR OWN EX COULD YOU TELL PA TOWER RECOLLECTION, SHE TOLD HER IN
RESPONSE THAT MAN IS NOT BLACK HE TOLD MER WHY SHE COULD HAVE BEEN A MIX. SHTS FEEDBACK
SHE FONDZED 0 HIS FEEDBACK WHILE THAT'S POSSIBLE, YOU KNOW, TODAY SO IN THIS TESTIMONY
SANDRA DIDN'T REPORT RECALLING EVEN A MIXED RACE HERITAGE, A MORE EN CAN YOU TELL PA TOWER
DESCRIPTION BEFORE HER HUSBAND'S FEEDBACK OH DURD. RATHER THE PROOFS AGAINST IT THAT
SHE INCORPORATED A MORE INCULPATORY RECOLLECTION OF RACE, SO THAT'S FEEDBACK INCORPORATES
MEMORY SPECIFICALLY APPLIES TO THIS CASE. CHIEF JUSTICE RABNER: COUNSEL,
AULG OF THAT WOULD BE APPROPRIATE CROSS-EXAMINATION IN A CASE, SET ASIDE THE
QUESTION OF A CHARGE, NO? DANIEL S. ROCKOFF: NO, YOUR HONOR. SO I WOULD,
WELL. THE COURT: YOU COULD NOT ASK A WITNESS WEREN'T YOU KRUPED BY YOUR
HUSBAND TELLING YOU X, Y AND Z AND THAT'S WHY I CHANGED YOUR STATEMENT. DANIEL
S. ROCKOFF: I MISS TOEK THAT WOULD BE A APPROPRIATE SUBJECT FOR CROSS-EXAMINATION BUT
THE INSTRUCTION ALSO NISZ SO THE JURY UNDERSTANDS OF NOT JUST THE PROBLEMS BY WHICH FEEDBACK
AND DISRUPT MEMORY BUT PEM REIS NOT LIKE A VIDEO AT ALL, THAT PEM RECAN BE DISSPORTED
AND FALSE MEMORIES PRODUCED IN THAT WAY. HE SO I WOULD -- CHIEF JUSTICE RABNER:
WE'RE A LITTLE SHORT ON TIME BUT I WANT TO JUST CLARIFY ONE THING, YOU ESSENTIAL ASKING
FOR AN EXPANSION OF HENDERSON TO CASES WHERE THERE IS NO IDENTIFICATION AND WHERE LINKAGE
OR OTHER MEANS MAKE THE TESTIMONY RELEVANT. IS THAT FAIR? RACK ROCK R. DANIEL
S. ROCKOFF: YES, UBDZ THE LIMITED CIRCUMSTANCES OF THIS CASE WHERE, YOU KNOW, THE TRIAL
TESTIMONY SHEEMS PEL FEED BARK, THERE'S TESTIMONY THAT FRPT THE TRIAL TESTIMONY DHULLY
COULD HAVE PRODUCED MISINFORMATION NOT ONLY FROM COWITNESSES BUT THROUGH AMPLE INTERACTIONS
WITH OFFICERS. IT'S SORT TO BOW GAK TO YOUR QUESTION ABOUT, YOU KNOW, WHY
CROSS-EXAMINATION ITSELF IS INSUFFICIENT, YOU KNOW, BEFORE HENDERSON DON'T INTU I HAVELY
UNALL THE REL TESTIFILY SCIENTIFIC FINDS BS THEY OFTEN HOLD BLOEFS TO THE CONTRARY, WHY
UNDERSTAND THE BETTER WITH AN APPROPRIATE JURY CHARGE. CHIEF JUSTICE RABNER:
SO PERHAPS THE DIFFERENCE IS PEOPLE ACCEPT EYEWITNESS IDENTIFICATIONS AND HENDERSON
SPEAKS A GREAT LENGTH TO THE FACT THAT INDIVIDUALS PLACE GREAT RELIANCE ON THAT. CAN YOU
POINT US TO ANYTHING THAT SAYS PEOPLE HAVE DIFFICULTY UNDERSTANDING THAT THE FEEDBACK
FROM ANOTHER WITNESS DISTORTS YOUR TESTIMONY IS SOMETHING JURORS NEED TO BE INSTRUCTED
BECAUSE THEY CAN'T ON THEIR OWN APPRECIATE HOW WRONG THAT MIGHT BE? . DANIEL
S. ROCKOFF: WELL, I MEAN T I WOULD POINT YOU TO, YOU KNOW, JURORS THE, SO IN A STATEMENT
LIKE THERE WAS A STATEMENT HERE LIKE THAT'S THE GUY FROM THE WITNESSES, BUT THE JURORS,
JURORS TRUST PROSECUTORS NOT TO MISLEAD THEM. THE PROSECUTOR'S SAY EVEN THOUGH THERE'S
NO, YOU KNOW, FIRST HAND EYEWITNESS TESTIMONY, NO EYEWITNESS WOULD SAY THAT'S CLASHGS
EE PUTTING HILGS ON THE LINE, HE'S SAYING THEY BELIEVES IT'S A MATCH ANYWAY SO WE WANTSED
JURORS TO BE ABLE TO INDEPENDENTLY IDENTIFY PROOFS OF DEN AT THE. JUSTICE
ALBIN: COUNSEL, Z HIEL TOY OG CONCENTRATE ON WHAT THE CARVERS SAID THAT PERMITTED THE
PROSECUTOR TO SAY IT'S AN ID, AND FROM YOUR PERSPECTIVE REVIEW THE RECORD, IS IT THE
HEIGHT AND THE WEIGHT AND THE BACKPACK BECAUSE THEY DON'T SEEM TO BE CONSISTENT ON MUCH
ELSE. DANIEL S. ROCKOFF: RIGHT. THE PROSECUTOR IS SAYING THERE'S ENOUGH
TESTIMONY HERE BOUF RACE, ENOUGH TESTIMONY ABOUT HEIGHT AND WEIGHT, AND THAT TESTIMONY
ABOUT CLOTHE CLORTS' TOO MUCH OF A COMPANY WEDNESDAY DENSE, AETS A MATCH. SO TO THE
EXTENT THAT FEED BOARDWALK IS THE PRODUCING MISINFORMATION THAT IS CORRUPTING JURORS'
MEMORY ESPECIALLY LIKE RACES 8 DESCRIBED, AND THE SAME THING, THAT EVERYEE HAD OCCASION
TO TALK TO MS. CARVER ABOUT WHAT HE SAW INCLUDING THE CLOTHING, ANOTHER BASIS FOR THE
OFFICERS VR OFFICER'S DESCRIPTIVE, EXCUSE ME, ANOTHER POTENTIAL AREA OF FEEDBACK, THE
JURY NEEDS TON INSTRUCTED THAT ON THE MECHANISMS, NOT JUST MEMORY IS NOT LIKE A VIDEO
BUT THAT THE MANNER IN WHICH. A FEEDBACK CAN OCCUR AND THE MECHANISM THE BY WHICH FEEDBACK
CAN PRODUCE FALSE MEMORIES. I DON'T THINK THAT'S AN INTUITIVE KOFRN SENT THAT EVERY JURORS
UNDERSTANDING. WE DON'T KNOW THAT JURORS ARE ANALYZING IN THIS WAY. AS FAR
AS THE NEED FOR A AT ANY LORD CHARGE AND PRECEDE PERCEIVE RG HEIGHT AND WEIGHT ACCURATELY
BECAUSE THAT'S ANOTHER BASIS FOR THE PROSECUTOR SAYING, AN DRA SAID OVER 6 FEET, OVER
200 POUNDS THE STATE EX MRIT SIT 8 ARTH THAT'S TESTIMONY, HEIGHT AND WEIGHT PROVE DENTS
AT THE BECAUSE THEY MATCH CLAFRJT SO AS IN GAR REEN IN A, YOU KNOW, WE KNOW THE THERE'S
RESEARCH, EASTERN SCOMPLEERNSED POLICE OFFICERS HAVE TRIFBLT MATING HEIGHT, HEIGHT CAN BE OFF
BY INCH, BY FEET, WEIGHT CAN BE OFTEN BY 20 POUNDS. MEMORY FOR RIGHT AND WEIGHT IS
USUALLY INKRITS AFTER ONE DAY. FRPT IN THAT CASE THE APPELLATE DIVISION REMANDS RD FOR
NOT JUST THE MULTIFACTOR, THIS IS TO DEVELOP A CHARGE ON HEIGHT SPECIFICALLY, THIS COURT
AFFIRMED, I KNOW YOU FOCUS IN YOUR OPINION ON AGE BUT YOU SEEM TO AGREE WITH THE NEED
FOR CAUTIONARY CHARGE ON ROUGH ESTIMATES SO HERE IS WHAT A CHARGE WOULD LIKE LIKE HERE
AS TO THE EFRM I WITNESS TO MISS ESTIMATE THOSE TYPE OF VEER AB; A CHARGE WOULD HAVE DIRECT
DZ BOTH CAUTION NAGS GUR REEN IN A AND INSTRUCTED SDWRORS CONSIDER SOME OF THE VARIABLES
THAT WERE TO BE PAFRTS MULTIFACTOR TEST IN GURRY NOON, DISTANCE THE I WITNESS WERE UP
TO 15 FEET AWAY AT THE CLOSEST, PROBABLE OBSERVED FOR THE EYEWITNESS DIDN'T KNOW A CRIME
WAS HAPPENING, DIDN'T REALLY THING ABOUT THE UNTIL THEY GAVE STATEMENTS, TEAM EE LANCE
THE UNTIL THOSE INITIAL ESTIMATES, FOR SANDRA IT WAS 4 DAYS LATE, FOR JEFFREY IT WAS 9
DAYS LATER LONGER THAN THE 1 DAY WHICH GUR REEN IN A SAYS SHE'S ESTIMATES ARE USUALLY
INKRITS. BECAUSE THERE A BASIS FOR COMPARISON, GAUR ROEN MRA TAUKDZ ABOUT THERE'S NO
TESTIMONY OF RIGHT P WEIGHT THAT THE PROSECUTOR WAS RELYING ON TO SHOW IT'S NOT A
COINCIDENCE, THIS IS A MATCH THAT THE THE PERSON STOOD TALLER OR MORE WEIGHT THAN THE PERSON
OF A OBJECT KNOWN HEIGHT OF WEIGHT SO TO PROVE IDENTITY THE EVALUATION OF THE ESTIMATES
HERE NEEDED TO PERSUADE THE JURY THAT THE THEY SAW SOMEONE OF PRECISE HEIGHT AND WEIGHT,
THIS IS ALL PROVING DENTS AT THE AND, THAT'S PROVING HE'S WITHIN A PARTICULAR RANGE LIKE
IN GUR REEN IN A, THE JURY NEEDS TO EVALUATE FOR PRECISENESS, WHAT THE JURY CHARGED NOT
JUST TO BE KASHS THE HEIGHT AND WEIGHTS ARE HARD TO ESTIMATE, BUT ALSO IN LIGHT OF THE
OBSERVATIONS BEE 90 FEET AWAY FOR MAYBE A MINUTE WHEN NARS NO OBVIOUS CRIME AFOOTD, NO
REASON TO CONTEMPORANEOUS ESTIMATE HEIGHT AND WEIGHT, NOTHING OCTOBER T 0 T COMPARE THE
ESTIMATES TO, THE ESTIMATES DIDN'T HAVE FOR DAYS, AND THERE'S POTENTIAL FEEDBACK THAT
CAN DISDORD TORTS MEMORIES. CHIEF JUSTICE RABNER: BEFORE YOU'RE ABOUT 40
MINUTES AND WE UNDERSTAND YOUR POSITION ON THE CHARGE, IS THERE ANYTHING ELSE YOU WANTED
TO SUS SIKTSLY ADDRESS IF NOT, WE'LL THANK YOU FO YR ARGUMENT, WE'LL. DANIEL S.
ROCKOFF: RACK ROCK THE LACK OF PROP PREP RACE IN THIS CASE, NO DIRECT FROOF FOR ANY CONTACT,
THIS GOING TO SOUNDS MED DEAN IN A'S POINTS LOOKING ITS ALL THE PROOFS TOGETHER, THE
EVIDENCE AGAINST DEFENDANT WAS NOT OVERWHELMING AGS STATE SUGGESTS. CHIEF
JUSTICE RABNER: WHAT COULDN'T TKS ARE YOU PRESENTING YOUR REVIEW OF THE SUFFICIENCY
HERE. DANIEL S. ROCKOFF: IN THE CONTEXT THAT FAILURE TO GIVE THESE CHARGES,
BOTH INDIVIDUALLY AND KUCHL TIFRLY, THE FAIL 84 TO GIVER THE STRUCK ON BURDEN, ESPECIALLY
IN LIGHTS OF THE BURDEN SIFRTING. CHIEF JUSTICE RABNER: HOLD ANSWER THE
PLAIN ERROR ARGUMENT. DANIEL S. ROCKOFF: YES IN LIGHT OF, RIGHT AND IN LIGHT
OF FAILURE TO GIVE A MOD RIGHT 10 HEN DPER SON CHARGE TO HE JURY KNOWS TO LOOK FOR WAYS
THAT'S MEMORY IN DESCRIPTIONS COULD HAVE BEEN DISORTED OR MISS PERCEIVED DUE TO FACTORS
OF HEIGHT AND WEIGHTS THAT ARE PRONE TO MISS PERCEPTION. CHIEF JUSTICE
RABNER: SO COUNSEL, WHY DON'T YOU TICK OFF FOR US THE POINTS IN TWO MINUTES AND THEN
WE'LL DRAW THIS TO A CLOSE. ROCK RK THANK YOU, YOU WERE. SO THERE'S NO DIRECT PROOF ANY
CONTACT WITH THE MS, NIERS VIDEO OF THE CRIME SOOERNS NO EYEWITNESSES TESTIFY CLARK WAS NTS
CRIME SEEN. THIS YARDZ, THERE'S NO TESTIMONY INVESTIGATORS EVER EVEN ASKED THE EYEWITNESS
IS THAT THE GUY YOU SAW, DOES THAT GUY HAVE BAGS OR CLOERJS BELIE LIKE AND PERSON YOU SAW,
NO WITNESS SAW THE SHOOT HAVING HAPPEN PERIOD, THAERS NO I WITNESS TO THE CRIME, NO
CONFESSION, THERE'S NO MURDER WEAPON, THERE'S NO PROOF CLARK EVER TOUCHED ANYBODY IN HIS
LIEFSHS THIS ISN'T A CASE WHERE THE PERPETRATOR WAS P PRE HENDED FLEEING THE SCENE
IMMEDIATELY LEAVING NOT DOUBTS ABOUT DEN AT THE, THIS A CASE WITH FAMILIAR EYE WIT NESHGS
THEY SAW WAY A STRANGER TO THEM. THE MOBILE RECORDS CAN'T PLACE CLSHG ITS CRIME SEEN
FELONY A EVEN IF THE CASE SEVERAL SQUARE MILES AND WEKTS EVEN SAY THE FULL FACTORY
INVOCATION. THERE'S NO PROOF OF THE CAR WHEN DIRECTLY FROM CLARK'S PHONE TO THE CRIME
SCENE FRP THE FORCE I 1 CAN THEIR THE. A. I WITNESS WERE AT THE VEEN BETWEEN 2 AND
TW:30, THEY DIDN'T SEE THE CAR UNTIL LATER IN THE AFTERNOON, THE STATE DOESN'T HAVE PROOF
THE WHO GOT NN OUT OF THE CAR. FINE MANY THERE'S A LACK OF CORROBORATION, EVEN THE EYE
WITNESS PROOFS, EATS EYEWITNESS ACTUALLY TESTIFIED SEEING A BLACK MONEY OR AN AVENUE AMERICAN
MAN AND THE EYEWITNESS DIDN'T TESTIFY ABOUT SEEING A PRIMARILY BLACK MAN WITH LOTSDZ OF
YELLOW AND ORANGE, A MAN THAT PRY PRABLY BLACK NOT A DROP OF YELLOW OR ORANGE IN SITE
THE MOST REMARK ABLG THING ABOUT THE ALMOST TOTAL ABSENCE OF CORROBORATION. I WOULD WRAP
UP UPON OUT IN ADDITION TO THE OTHER CUM A TIFF ERROR, I ALREADY TALKED ALT LEAST LIE
THE 5TH AMEND MENTD PROBLEM, AS WELG AS UFR B DEN SHIFTING, BUT THERE'S ONE PROBLEM THE
APPELLATE DIVISION POINLTED OUT WHERE THE PROSECUTOR BLIND CHARACTER BASICALLY A MINOR
SLIGHT, YOU KNOW, HE DIDN'T GIVE THIS GUY HIS ARM, YOU KNOW, GIVE THE PROSECUTOR SAID
GIVE YOU YOUR ARM, RACK RAB WHY DON'T YOU LEFT ON YOUR PAINS FOR THAT POINTS.
DANIEL S. ROCKOFF: SO THERE'S A REAL POSSIBILITY THE WRONG MAN WAS COULDN'T VISHG DZ OF
THI CRIME, ENTIRELY THE TRIAL COURT FRALD IF PROPERLY INSTRUCT THE JURY HOW TO EE VOOL
WAIT THE SKRIMTH TIFF PROOFS THE IDENTITY, THE APPELLATE WAGS I WAS CLUL THE VIET TO ORDER
NEW TRIAL WITH APPROPRIATE TAILORED INSTRUCTIONS, WE ASK THAT THE INTEREST RFT JUSTICE
YOU AFFIRM THE SWORD FOR A NEW TRIAL. THANK YOU. VALERIA DOMINGUEZ: I AM
GOING TO BE VERY BRIEF. FIRST I WOULD AGREE THIS WOULD BE A SIGNIFICANT EXPANSION OF
HENDERSON. AND A HENDERSON CHARGE WITH ESTIMATOR VARIABLES IS INCONSISTENT WITH ALSO
CHARGING A NO IDENTIFICATION CHARGE. IT IS POTENTIALLY CONFUSING TO THE JURY.
UNDERLINING HENDERSON, OF COURSE IS THIS COURT'S ACKNOWLEDGMENT THAT HAVING
A WITNESS TESTIFY THAT IT WAS THE DEFENDANT WHO COMMITTED THE OFFENSE. WE
DON'T HAVE THAT AT ALL IN THIS CASE. THE CAR VERSE ARE MERELY TESTIFYING AS
TO THE DESCRIPTION OF SOMEONE THAT THEY SAW AND THE PROSECUTOR ASKING THE JURY TO MAKE
A PROPER INFERENCE BASED ON HOW THE DEFENDANT LOOKED ON THE SURVEILLANCE VIDEO AND THE
CAR VERSE TESTIMONY. THAT WAS A PROPER INFERENCE THAT THE PROSECUTOR MADE -- ASKED THE
JURY TO MAKE BASED ON THE EVIDENCE BEFORE. IT DOESN'T MAKE THE CAR VERSE TESTIMONY
AN IDENTIFICATION. THE PROSECUTOR REPEATEDLY SAID AS DID DEFENSE COUNSEL THAT THERE IS
NO IDENTIFICATION IN THIS CASE. THEY DIDN'T ID HIM. THEY COULDN'T ID HIM.
SECOND, I WOULD JUST DISAGREE WITH MY ADVERSARIES READING OF THE MAJORITY'S REVERSAL OF THE
REASONING BEHIND THE MAJORITY REVERSAL. IT DOESN'T APPEAR THAT IT WAS BASED SOLELY ON
THE IDENTIFICATION. IT REAL IS AS TO THE ADMISSIBILITY OF THE CARVER'S TESTIMONY. AND
WITH OUT A DOUBT THE TESTIMONY WAS RELEVANT AND ADMISSIBLE AND THERE IS NO NEED FOR A
104 HEARING. AS TO THE BACK INSTRUCTION AND FEEDBACK EVIDENCE, MY
ADVERSARY RELIES ON THE CARVER'S STATEMENT TO THE POLICE WHICH WAS NOT INTRODUCED INTO
EVIDENCE. THE CARVER'S TESTIMONY AT CROSS-EXAMINATION COULD HAVE BROUGHT OUT AN
THEY DID BRING OUT DISCREPANCIES THAT THEY HAD BETWEEN THE STATEMENT, BUT THE ENTIRE
STATEMENT WAS NOT PLAYED BEFORE THE JURY. I DISAGREE THAT CORE REASON THAT
IS APPLICABLE IN THIS CASE. THAT IS A LAS WITNESS OPINION THAT DISCUSSES LAY WITNESS
OPINION TESTIMONY. IT WAS AN ELEMENT OF THE CHARGE THERE. AND FINALLY, AGAIN,
JUST GOING BACK I DISAGREE THAT THE PROSECUTOR CERTAINLY SAID THAT THIS WAS AN
IDENTIFICATION. HE REPEATEDLY SAID THAT THERE WAS NO IDENTIFICATION AND I WILL JUST RELY
ON MY BRIEF FOR ANY OTHER ARGUMENT. CHIEF JUSTICE RABNER: THANK YOU COUNSEL,
WE WILL TAKE THE MATTER UNDER ADVISEMENT.