prove beyond a reasonable doubt that it was defendant
who was the assailant, 2) it is not defendant’s burden to
prove that he was elsewhere when the offense occurred,
and 3) the State’s case depended on the eyewitness
identification by the victim, setting forth the respective
factual contentions relative to the victim’s descriptions.
State v. Green, 86 N.J. 281, 292-293 (1981); see also State
v. McNeil, 303 N.J. Super. 266 (App. Div. 1997) (lack of
an identification charge constituted reversible error);
State v. Middleton, 299 N.J. Super. 22 (App. Div. 1997)
(the Appellate Division reversed convictions finding that
the trial court inadequately responded to a jury question
involving the State’s identification evidence, inad-
equately charged identification to the jury by failing to
give Green charge); State v. Green, 313 N.J. Super. 385
(App. Div. 1998).
The court need not give a specific instruction on
identification upon request or sua sponte where there
exists a positive, accurate and consistent identification by
the witness, substantial corroborating evidence, and
defense counsel has an opportunity to attack the
credibility of identification testimony through cross-
examination and summation. State v. Salaam, 225 N.J.
Super. 66, 72-73 (App. Div. 1988). Compare State v.
Jones, 224 N.J. Super. 527, 534 (App. Div. 1988), where
the Court concluded that the significance of the
identification testimony therein warranted a specific
charge on identification if requested by defendant).
Whether the model “identification” charge must be
tailored to the facts of each case is an issue which is in a
state of flux. For example, in State v. Edmonds, 293 N.J.
Super. 113 (App. Div.), certif. denied, 148 N.J. 459
(1996), the court held that giving the model charge was
error because the victim had made inconsistent
identifications. Specifically, in Edmonds the victim
identified the defendant to the police as the person who
grabbed a chain from her neck, but in court she identified
the co-defendant as the one who grabbed the chain. The
court held that the giving of a truncated model charge was
misleading because it referred to the victim’s in court
identification without making reference to her
inconsistent out-of-court identification.
Yet in State v. Malloy, 324 N.J. Super. 525 (App. Div.
1999), another Appellate Division panel reversed a
conviction when the trial court failed to discuss the
evidence regarding identification in his charge to the
jury. Although the trial judge’s truncated version of the
identification instruction was deemed to require reversal,
the court went on to hold that the judge was required to
point out in his instruction to the jury on identification
the evidence introduced which cast doubt upon the
identification of defendant. Id. at 535-36.On the other hand, a third Appellate Division panel
held that a judge is not required to give special credibility
instructions on the issue of identification when questions
regarding the reliability of the identification were
adequately developed during the trial, particularly by
way of cross- examination of the identification witnesses,
and on summations. State v. Walker, 322 N.J. Super.
535, 547-50 (App. Div.), certif. denied, 162 N.J. 487
(1999). The Walker court also rejected defendant’s
contention that the trial judge was required to give a jury
instruction summarizing inconsistencies between the
victim’s in-court identification of defendants and her
description of the perpetrators given shortly after the
commission of the crimes. Id. at 552.Finally, in State v. Swint, 323 N.J. Super. 236 (App.
Div.) certif. denied, 165 N.J. 492 (2000), the court found
that the trial court did not err in not giving a factually
tailored identification charge. The Swint court reasoned
that a corollary to the right of a judge to comment on the
evidence, is the right not to comment on the evidence.
State v. Swint, 328 N.J. Super. at 259, citing State v.
Biegenwald, 106 N.J. 13, 44, 524 (1987). The court in
Swint articulated its concern that when a trial court
comments extensively on the facts developed during the
trial, it runs the risk of being perceived by the jury, as well
as the parties, as an advocate. Thus, the Swint court
found that commenting on the relative strengths or
weaknesses of the identification is best left to the
attorneys rather than the judge.Recently in State v. Robinson, 163 N.J. 80 (2000),
the New Jersey Supreme Court addressed the issue of
whether a trial court is required to use fact-specific jury
instructions regarding a witnesses’ identification of a
defendant. The Court held that a trial court may but is
not required to refer to the facts of the case when
providing instructions on identification.In State v. Cromedy, 158 N.J. 112 (1999), the
Supreme Court of New Jersey decided that a cross-racial
identification charge should be given to the jury in
certain cases. “The simple fact pattern of a white victim
of a violent crime at the hands of a black assailant” does
not automatically give rise to the need for the charge,
however. The instruction should be given only when
identification is a critical issue, and when the eyewitness
identification is not corroborated by other evidence
giving it independent reliability. But see State v. Kelly,
302 N.J. Super. 145 (App. Div. 1997) (Appellate