New Jersey v. Sanchez-Medina

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                State v. Alexis Sanchez-Medina (A-10-16) (077883)

Argued October 10, 2017 -- Decided January 18, 2018

RABNER, C.J., writing for the Court.

         The Court considers whether defendant was denied his right to a fair trial on sexual assault charges. First,
the prosecution asked defendant whether he had come to the United States legally. Over an objection, the jury
learned that defendant had not. Second, although the allegations related to different incidents that involved four
separate victims, the case rested heavily on an identification by a single witness. Despite that, neither party
requested a jury charge on eyewitness identification, and the trial court did not instruct the jury on the subject.

         A jury convicted defendant Alexis Sanchez-Medina of various sexual-assault crimes that involved four
separate victims: R.D., D.J., A.M., and A.B.

         (1) On July 27, 2012, in Englewood, a man on a bicycle approached R.D. from behind, tried to push her,
and grabbed her buttocks. R.D. described her assailant as a Hispanic male with a ponytail. R.D. was the only
witness to identify defendant. She selected his picture out of an array of six photographs. R.D. also identified
defendant in court. (2) D.J. was inside her basement apartment in Englewood on August 9, 2012, at about 11:00
p.m., when she noticed the window air conditioner unit move. She went outside to investigate but did not see
anyone. As D.J. walked back to her apartment, someone pinned her down. The attacker reached down her pants
and inside her underwear, then got up and ran away. D.J. admitted that she did not get a good look at the attacker.
She described him as a light-skinned African American or Hispanic male who wore his curly black hair in a
ponytail. (3) At about 10:00 p.m. on August 10, 2012, A.M. was walking in Dumont. She saw a “shadow of a guy”
approach her from behind. The man grabbed both of her arms from behind and gripped them tightly. He eventually
released her and ran away. A.M. did not see her attacker’s face. She said he appeared to be about 5’3” to 5’7” in
height, had a medium build, and had short dark hair. She noted that he wore a sweatshirt and cargo pants. (4)
About twenty minutes after the prior incident, A.B. was assaulted in Dumont. A man charged at A.B. from behind,
forced her to the ground, and put his fingers up her shorts and inside her vagina. A.B. screamed and tried to push
the attacker off of her, and he ran away. A.B. never saw the man’s face. As he ran, she saw the back of his head
and his silhouette. She did not describe him other than to note that he wore dark shorts and a dark shirt.

        As part of an investigation into the attacks, the police detained defendant, who repeatedly denied any
involvement in the attacks. He also made certain admissions.

         All four victims testified at trial and relayed the above details. Defendant testified as well. He denied that
he had ever seen any of the victims or done anything to them. His defense was misidentification.

        The prosecution began its cross-examination of defendant with this question: “You’re from Honduras,
right?” After defendant said “yes,” the prosecution asked, “And you didn’t come into the United States legally?”
Defense counsel objected, and the trial judge overruled the objection. Defendant then confirmed that he had not
“come into this country legally.” The judge gave conflicting limiting instructions about that evidence. In addition,
although R.D.’s identification of defendant was central to the case, neither party asked the judge to instruct the jury
on how to evaluate the evidence. The court did not instruct the jury specifically on that point on its own.

          On appeal, the State acknowledged that the prosecution should not have elicited testimony about
defendant’s immigration status. The panel found that defendant was not prejudiced by the testimony in light of the
trial court’s limiting instructions. The Appellate Division also found that the trial court should have charged the jury
on identification. The panel, though, concluded that the omission did not constitute plain error in light of the strong
evidence that corroborated R.D.’s identification, specifically, defendant’s statement.

                                                           1
          The Court granted defendant’s petition for certification limited to the following issues: the admissibility of
defendant’s immigration status for impeachment purposes; and the trial court’s failure to instruct the jury on
identification. 
228 N.J. 57 (2016).

HELD: The cumulative effect of both errors denied defendant his right to a fair trial.

1. The State rightly concedes that it was improper to question defendant about his immigration status. As a general
rule, that type of evidence should not be presented to a jury. To be admissible at trial, evidence must be relevant.
N.J.R.E. 401. Whether a defendant entered the country legally tells a jury nothing about whether he committed an act
of sexual assault. Even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the
risk of . . . undue prejudice, confusion of issues, or misleading the jury.” N.J.R.E. 403. Both today and in late 2013
when this trial took place, evidence of a defendant’s undocumented immigration status could appeal to prejudice,
inflame certain jurors, and distract them from their proper role in the justice system: to evaluate relevant evidence fairly
and objectively. A defendant’s immigration status is not proof of character or reputation that can be admitted under
Rules 404 or 608. Proof of status alone is also not evidence of a prior criminal conviction. See N.J.R.E. 609. Nor is a
person’s immigration status admissible as a prior bad act under Rule 404(b). (pp. 13-17)

2. In this case, the error was significant. The prosecution’s first questions on cross-examination focused on defendant’s
status and set the tone for what followed. To compound the error, the trial court issued conflicting instructions about
whether jurors could consider the evidence to determine whether defendant “follows the rules of society.” Without a
clear instruction to disregard the evidence entirely, we cannot be certain whether and how the jury might have relied
upon it during deliberations. (pp. 17-18)

3. The State also appropriately recognizes that the failure to instruct the jury on identification evidence was an error.
R.D.’s identification of defendant was central to this case. She was the sole witness to identify defendant, and his
defense at trial was misidentification. When eyewitness identification is a “key issue,” the trial court must instruct
the jury how to assess the evidence—even if defendant does not request the charge. State v. Cotto, 
182 N.J. 316,
325 (2005). The jury in this case should have been instructed about some of the factors discussed in State v.
Henderson, 
208 N.J. 208 (2011). At a charge conference, the parties and the court should have considered whether
charges on memory decay, confidence, stress, duration, lighting, and other factors were warranted. To be sure, the
judge should have given the charge on his own because R.D.’s identification was a “key issue.” But counsel for the
State and the defense are very much a part of the trial process as well. It is imperative that both sides carefully
evaluate and propose relevant jury instructions before and during trial, rather than after a verdict. (pp. 18-21)

4. Defendant’s convictions rest largely on the testimony of four victims, only one of whom could identify him. No
forensic evidence linked defendant to the crimes charged, and no other witnesses observed or could corroborate any
of the incidents. The witnesses’ descriptions of their assailants varied. In addition, although the assaults shared
some similarities, they differed from one another in key ways. The assaults were not “signature” crimes that, on
their own, suggest the same person carried out each attack. Defendant’s statement to the police, which he recanted
at trial, offers some corroboration. Yet he also denied the core of the accusations during the interview. Looking at
all of the proofs together, the evidence against defendant was not overwhelming, as the State suggests. (pp. 21-23)

5. Even if an individual error does not require reversal, the cumulative effect of a series of errors can cast doubt on a
verdict and call for a new trial. Here, the jury received no guidance about how to assess the single identification of
defendant—a critical issue at trial that defendant disputed. And the jurors were not told to ignore provocative
evidence about defendant’s immigration status. Together, those errors undermined defendant’s right to a fair trial.
They raise serious questions about whether the outcome was just, particularly in light of the strength of the evidence
presented. See R. 2:10-2. The Court therefore has no choice other than to vacate defendant’s convictions. (p. 23)

          Defendant’s convictions are VACATED, and the matter is REMANDED to the Law Division for a new
trial consistent with this opinion.

     JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion.



                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-
10 September Term 2016
                                                 077883

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

ALEXIS SANCHEZ-MEDINA,

    Defendant-Appellant.


         Argued October 10, 2017 – Decided January 18, 2018

         On certification to the Superior Court,
         Appellate Division.

         Tamar Y. Lerer, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney; Tamar Y. Lerer, of counsel and on
         the briefs).

         Elizabeth R. Rebein, Assistant Bergen County
         Prosecutor, argued the cause for respondent
         (Gurbir S. Grewal, Bergen County Prosecutor,
         attorney; Gurbir S. Grewal, of counsel and
         on the brief).

         Ronald K. Chen argued the cause for amicus
         curiae American Civil Liberties Union of New
         Jersey (Edward L. Barocas, Legal Director,
         and the Rutgers University School of Law-
         Newark Constitutional Rights Clinic,
         attorneys; Ronald K. Chen, Edward L.
         Barocas, Jeanne M. LoCicero and Alexander R.
         Shalom, of counsel and on the brief).

    CHIEF JUSTICE RABNER delivered the opinion of the Court.

    This criminal case involves charges of sexual assault.

Defendant testified on his own behalf at trial and denied the
                                1
allegations.     At the start of his cross-examination, the

prosecution asked whether he had come to the United States

legally.     Over an objection, the jury learned that defendant had

not.    That highly charged evidence was irrelevant and should not

have been admitted, as the State now concedes.

       Only in a rare case will it be appropriate for a prosecutor

to elicit testimony about a defendant’s immigration status.      In

most instances, that type of evidence has no bearing on the

crimes charged or a witness’s credibility.      It can also

substantially prejudice the accused because of the inflammatory

nature of the issue.

       This appeal presents a second issue as well.   Although the

allegations related to different incidents that involved four

separate victims, the case rested heavily on an identification

by a single witness.     No other victim could identify her

assailant.     Despite that, neither party requested a jury charge

on eyewitness identification, and the trial court did not

instruct the jury on the subject.      In light of the overall

strength of the proofs presented, that error was significant.

       The cumulative effect of both errors denied defendant his

right to a fair trial.     We are therefore required to vacate

defendant’s convictions and remand for a new trial.




                                   2
                                I.

    A jury convicted defendant Alexis Sanchez-Medina of various

sexual-assault crimes that involved four separate victims:

R.D., D.J., A.M., and A.B.   We refer to the victims by their

initials to protect their identity.       To recount the distinct

criminal episodes, we rely on the victims’ testimony at trial.

                                A.

    On July 27, 2012, at around 8:30 p.m., R.D. was walking

with her three-year-old son in Englewood.       A man on a bicycle

approached R.D. from behind, tried to push her, and grabbed her

buttocks.   He then rode up and down the street for several

blocks, threw kisses at her, and again tried to push her.       He

also made comments in Spanish that R.D. did not follow.

    R.D. was headed to her boyfriend’s house and, as she

approached it, the man shoved her onto the lawn and kept moving

on his bicycle.   R.D. later noticed that a pink dress she had

been carrying in a bag was missing.      Days after, she saw the

dress on a pole where she had last seen her assailant.

    R.D. contacted the police almost three weeks later after

she watched a news report “about a rapist” in the area.       The

next day, she met with detectives from the Englewood Police

Department and gave a statement.       She described her assailant as

a Hispanic male with a ponytail.       She said he wore a royal blue



                                   3
hat and t-shirt, short blue jeans, and sneakers at the time of

the attack.

    R.D. was the only witness to identify defendant.     She

selected his picture out of an array of six photographs.       At

first, she told a detective that she was 75 percent certain that

the person in the photo had attacked her.    Soon after, she said

she was 100 percent sure.    R.D. also identified defendant in

court.

                                  B.

    D.J. was inside her basement apartment in Englewood on

August 9, 2012, at about 11:00 p.m., when she noticed the window

air conditioner unit move.    She went outside to investigate but

did not see anyone.     As D.J. walked back to her apartment and

called a friend, someone lifted her from behind, “slammed [her]

into the concrete,” and pinned her down.    The attacker reached

down her pants and inside her underwear, touched her clitoris,

and smelled his hand.    The man then got up and ran away.

    D.J. admitted that she did not get a good look at the

attacker, who was behind her the whole time.    She described him

as a light-skinned African American or Hispanic male.     She added

that he had muscular arms, wore his curly black hair in a

ponytail, and was dressed in dark clothing and white sneakers.




                                  4
                                  C.

    At about 10:00 p.m. on August 10, 2012, A.M. was walking to

a convenience store in Dumont.     She saw a “shadow of a guy”

approach her from behind.    The man grabbed both of her arms from

behind and gripped them tightly.       She tried to resist, and he

eventually released her and ran away.

    A.M. did not see her attacker’s face.        She said he appeared

to be about 5’3” to 5’7” in height, had a medium build, and had

short dark hair.   She noted that he wore a sweatshirt and cargo

pants.

                                  D.

    About twenty minutes after the prior incident, A.B. was

assaulted in Dumont.     After she took out the garbage and placed

it in a dumpster near her apartment, a man charged at A.B. from

behind, forced her to the ground, and put his fingers up her

shorts and inside her vagina.     A.B. screamed and tried to push

the attacker off of her, and he ran away.

    A.B. never saw the man’s face.         As he ran, she saw the back

of his head and his silhouette.        She did not describe him other

than to note that he wore dark shorts and a dark shirt.

                                  E.

    As part of an investigation into the attacks, the police

detained an individual on August 14, 2012, who partially fit the

victims’ descriptions.    Officers questioned the suspect,

                                   5
defendant Sanchez-Medina, at the Dumont Police Department.       The

interrogation began at about 11:40 p.m. and lasted until close

to 4:00 a.m.

    At the outset, defendant disclosed that he was born in

Honduras.   After he waived his rights under Miranda v. Arizona,


384 U.S. 436 (1966), he explained that he had been in the United

States since 2008 and provided additional background

information.

    Defendant repeatedly denied any involvement in the attacks.

He also made certain admissions.       Because no one referred to the

victims by name, some of defendant’s comments cannot be readily

matched to particular victims.

    The early part of the interview appears to have focused on

the incidents in Dumont.   Defendant said that he might have hurt

a woman when he knocked her to the ground while running.

Because she screamed, he ran on.       At another point, defendant

said a woman “got caught on the bicycle” and tripped.       After

repeated denials, defendant admitted that he accidentally fell

on a second woman when she tripped, and he grabbed her waist.

Defendant did not admit touching the genitalia of either woman.

    The interview later turned to the incidents in Englewood,

and defendant consistently denied any involvement.       After

extended questioning, he admitted that he hit a woman with a

bicycle while he was drunk.   The woman was with a child.

                                   6
Defendant said that he wanted to touch her “butt” but instead

passed her on the bicycle and grabbed only a shopping bag.      He

said the woman was carrying pants.

    Defendant also admitted that he grabbed a woman by the

stomach, from behind, while she was talking on a phone.    Toward

the end of the interview, a detective asked, “And when she was

on the ground, you tried to put your hand on her vagina?”

Defendant responded, “yes,” and added that he put his hand on

her to touch her and left when she screamed.   He did not admit

that he penetrated her.

    None of defendant’s statements appear to match A.M.’s

account of her attack.

    A Bergen County grand jury returned an indictment against

defendant that charged him with three counts of second-degree

attempted sexual assault, against R.D., D.J., and A.M., contrary

to 
N.J.S.A. 2C:5-1 and 2C:14-2(c)(1) (counts one, three, and

five); two counts of fourth-degree criminal sexual contact,

against R.D. and D.J., contrary to 
N.J.S.A. 2C:14-3(b) (counts

two and four); and one count of second-degree sexual assault,

against A.B., contrary to 
N.J.S.A. 2C:14-2(c)(1) (count six).

                                F.

    All four victims testified at trial and relayed the above

details.   Defendant testified as well.   He denied that he had

ever seen any of the victims or done anything to them.    His

                                7
defense was misidentification.    Defendant also claimed he made

false admissions to the police.

      The prosecution began its cross-examination of defendant

with this question:    “You’re from Honduras, right?”    After

defendant said “yes,” the prosecution asked, “And you didn’t

come into the United States legally?”

      Defense counsel objected, and the trial judge overruled the

objection.    Both the court and the prosecution mistakenly

recalled that defendant had testified he had no prior

involvement with the police and no record.1      The court explained

that defendant could not “have it both ways” and improperly

allowed the line of inquiry to test defendant’s credibility.

Defendant then confirmed that he had not “come into this country

legally.”

      The judge gave conflicting limiting instructions about that

evidence.    After defendant’s testimony, the judge instructed the

jury as follows:

            You heard testimony from the defendant and
            there was a reference to his illegal status.
            You’re not to use that as proof of guilt[]
            concerning   the   offenses  listed   in  the
            indictment.    You can, however, use that
            information to test the credibility of the
            defendant as to whether or not he follows the
            rules of society and therefore it could make
            a   difference   concerning   the   issue  of
            credibility, but not as proof of the
            underlying offenses.

1   Our holding does not turn on this mistake.
                                  8
Later in the day, after closing arguments, the trial judge gave

final instructions to the jury and advised them on the issue

again:

         [E]arlier I gave you an instruction as to
         [the] immigration status of the defendant. I
         want you to disregard the earlier instruction
         and completely focus on this particular
         limiting instruction, all right, limiting
         instruction slash charge.

         You have heard evidence that the defendant is
         in this country illegally. You may not use
         the mere fact that the defendant may be
         illegally in the country to conclude that he
         is less likely to comply with our society’s
         rules and therefore committed the crimes in
         the indictment.

The judge did not instruct the jury on how it might use the

testimony in the record about defendant’s immigration status.

    In addition, although R.D.’s identification of defendant

was central to the case, neither party asked the judge to

instruct the jury on how to evaluate the evidence.   The court

did not instruct the jury specifically on that point on its own.

    The jury found defendant not guilty of attempted sexual

assault of R.D. (count one), but guilty of the lesser-included

offense of simple assault.   The jury reached the same verdict as

to the attack against A.M. (count five).   The jury found

defendant guilty of criminal sexual contact with R.D. (count

two), attempted sexual assault against D.J. (count three),



                                9
criminal sexual contact with D.J. (count four), and sexual

assault against A.B. (count six).

    The court sentenced defendant to an aggregate term of

imprisonment of 18.5 years, with 13.6 years of parole

ineligibility.

                                G.

    In an unpublished opinion, the Appellate Division affirmed

in part, reversed in part, and remanded for further proceedings.

Defendant raised nine issues, only two of which are relevant at

this time.

    On appeal, the State acknowledged that the prosecution

should not have elicited testimony about defendant’s immigration

status.   The panel found that defendant was not prejudiced by

the testimony in light of the trial court’s limiting

instructions.

    The Appellate Division also found that the trial court

should have charged the jury on identification.   The panel,

though, concluded that the omission did not constitute plain

error in light of the strong evidence that corroborated R.D.’s

identification, specifically, defendant’s statement.

    The panel vacated defendant’s conviction on count three --

attempted sexual assault against D.J. -- because the jury

instruction on attempt was erroneous.



                                10
    We granted defendant’s petition for certification limited

to the following issues:   the admissibility of defendant’s

immigration status for impeachment purposes; and the trial

court’s failure to instruct the jury on identification.        
228 N.J. 57 (2016).

                                II.

    This appeal presents an unusual situation in that both

parties now agree that it was error to question defendant about

his immigration status and error not to give the jury an

instruction on eyewitness identification.   The parties and

amicus have different views on the effect of those errors.

    Defendant contends that evidence of his immigration status

was not only inadmissible but also so prejudicial and

inflammatory that it deprived him of his right to a fair trial.

He contends that the cross-examination was improper under the

rules of evidence and undermined his credibility before the

jury.   He also submits that the trial court’s limiting

instructions failed to cure the error.

    Defendant adds that an identification charge was required

because identification was the key issue in the case.     He

maintains the charge was also needed to enable the jury to

evaluate the reliability of the single eyewitness victim.       In

defendant’s view, because the State’s case “rested on an

unreliable identification and an incomplete and inconsistent

                                11
statement” to the police, the failure to charge the jury on

eyewitness identification constituted reversible error.

    In the alternative, defendant argues that the cumulative

effect of both errors warrants a new trial.

    The State argues that, although defendant’s immigration

status should not have been admitted for impeachment purposes,

defendant was not denied a fair trial.     According to the State,

the evidence against defendant was overwhelming, the prosecution

did not dwell on his immigration status, and the judge’s

limiting instructions cured the error.

    The State also claims that the lack of an identification

charge was not plain error.   The State points to “strong

corroborating evidence” linking defendant to the attacks and to

defendant’s statement.   In addition, the State maintains that if

the estimator variables outlined in State v. Henderson, 
208 N.J.
 208 (2011), apply to this case, they support the reliability of

R.D.’s identification.

    We granted the American Civil Liberties Union of New Jersey

(ACLU) leave to appear as amicus curiae.     The organization

addresses the immigration issue and reinforces defendant’s

position.   The ACLU stresses that evidence of a defendant’s

federal immigration status is rarely probative of a relevant

substantive issue and can “arous[e] public passion and prejudice

against undocumented immigrants.”    The ACLU also contends that

                                12
the jury instruction in this case exacerbated the error.     The

group instead highlights a recent model jury charge on the

topic.

                               III.

    The State rightly concedes that it was improper to question

defendant about his immigration status.   As a general rule, that

type of evidence should not be presented to a jury.

    To be admissible at trial, evidence must be relevant --

that is, it must have “a tendency in reason to prove or disprove

any fact of consequence to the determination of the action.”

N.J.R.E. 401.   Whether a defendant entered the country legally

tells a jury nothing about whether he committed an act of sexual

assault.   In this case, it is simply not relevant to the

offenses for which defendant Sanchez-Medina was on trial.

    Even if relevant, “evidence may be excluded if its

probative value is substantially outweighed by the risk of . . .

undue prejudice, confusion of issues, or misleading the jury.”

N.J.R.E. 403.   Both today and in late 2013 when this trial took

place, evidence of a defendant’s undocumented immigration status

could appeal to prejudice, inflame certain jurors, and distract

them from their proper role in the justice system:    to evaluate

relevant evidence fairly and objectively.

    In limited circumstances, proof of a person’s immigration

status can be admissible.   If the prosecution, for example,

                                13
promised a witness favorable immigration treatment in exchange

for truthful testimony, a jury would be entitled to assess the

witness’s credibility in light of that promise.   Or if a

defendant had lied about his immigration status to obtain

government benefits as part of a scheme to defraud, his true

status would be relevant to the crime charged.    Still,

exceptions like those are rare.    In most cases, the immigration

status of a witness or party is simply irrelevant, and a jury

should not learn about it.

    Before attempting to introduce this type of evidence,

parties should raise the issue with the court outside of the

jury’s presence, under N.J.R.E. 104.    If the evidence is

admitted, the court should give an appropriate limiting

instruction.   See Model Jury Charges (Criminal), “Credibility --

Immigration Consequences of Testimony” (rev. June 6, 2016).

    Other federal and state courts have reached the same

conclusion about the relevance of a witness’s immigration

status.   See, e.g., Solis v. SCA Restaurant Corp., 
938 F. Supp. 2d 380, 401 n.11 (E.D.N.Y. 2013) (noting that “immigration

status was irrelevant to issues in the case and not probative on

the issue of the credibility of the witnesses”); Velasquez v.

Centrome, Inc., 
183 Cal. Rptr. 3d 150, 168 (Cal. Ct. App. 2015)

(“[I]mmigration status alone has no tendency in reason to prove

or disprove any fact material to the issue of a party’s

                                  14
credibility.”); Ayala v. Lee, 
81 A.3d 584, 598 (Md. Ct. Spec.

App. 2013) (“Immigration status alone does not reflect upon an

individual’s character and is thus not admissible for

impeachment purposes.”); see also Figeroa v. INS, 
886 F.2d 76,

79 (4th Cir. 1989) (“An individual’s status as an alien, legal

or otherwise . . . does not entitle the Board [of Immigration

Appeals] to brand him a liar.”).

    Courts have also highlighted the prejudicial effect of the

evidence.    In Serrano v. Underground Utilities Corp., for

example, the Appellate Division upheld a protective order that

restricted discovery relating to the plaintiffs’ immigration

status.     
407 N.J. Super. 253, 258 (App. Div. 2009).   As the

panel observed, courts “must be cognizant of the risks of undue

prejudice if [the parties’] illegal immigration status is

disclosed to a jury at the time of trial. . . .     Their illegal

status in this country is very likely to trigger negative

sentiments in the minds of some jurors.”     Id. at 274.

    Other jurisdictions agree.      See, e.g., Andrade v.

Walgreens-OptionCare, Inc., 
784 F. Supp. 2d 533, 535 (E.D. Pa.

2011) (“Many courts have opined that references to a party’s

immigration status expose that party to a substantial risk of

unfair prejudice.”); Escamilla v. Shiel Sexton Co., 
73 N.E.3d 663, 675 (Ind. 2017) (recognizing that plaintiff’s immigration

status carries risk of unfair prejudice); TXI Transp. Co. v.

                                  15
Hughes, 
306 S.W.3d 230, 244 (Tex. 2010) (finding that

“prejudicial potential” of party’s immigration status

“substantially outweighed any probative value”); Salas v. Hi-

Tech Erectors, 
230 P.3d 583, 587 (Wash. 2010) (finding low

probative value of plaintiff’s undocumented status, with regard

to lost future earnings, “is substantially outweighed by the

danger of unfair prejudice”); Gonzalez v. City of Franklin, 
403 N.W.2d 747, 760 (Wis. 1987) (noting “the obvious prejudicial

effect” of party’s undocumented status); see also Sandoval v.

State, 
442 S.E.2d 746, 747 (Ga. 1994) (noting that “an appeal to

. . . prejudice is improper in a court of justice”).

     A defendant’s immigration status is likewise not admissible

under other rules of evidence.   It is not proof of character or

reputation that can be admitted under Rules 404 or 608.2   Proof

of status alone is also not evidence of a prior criminal




2  Subject to a few exceptions, Rule 404(a) bars the admission of
character evidence to prove that a person “acted in conformity
therewith on a particular occasion.” Rule 608 is one of the
exceptions to the rule. N.J.R.E. 404(a)(3).

   Rule 608(a) allows character evidence in the form of
reputation or opinion testimony only as it relates to the
witness’s character for truthfulness or untruthfulness.
Specific instances of conduct are generally not admissible to
prove a character trait. N.J.R.E. 608(a). There are two
exceptions to that rule: proof that a “witness made a prior
false accusation against any person of a crime similar to the
crime with which defendant is charged,” N.J.R.E. 608(b); and
proof of a criminal conviction, pursuant to N.J.R.E. 609.
Neither exception applies here.
                                 16
conviction.    See N.J.R.E. 609.   Nor is a person’s immigration

status admissible as a prior bad act under Rule 404(b).       To be

admissible, such evidence must be “relevant to a material

issue,” and its probative value “must not be outweighed by its

apparent prejudice.”     State v. Cofield, 
127 N.J. 328, 338 (1992)

(factors one and four of multi-factor test).     Proof of a

defendant’s immigration status fails on both counts.

    In this case, the error was significant.     Although counsel

did not dwell on defendant’s undocumented status, the evidence

was hard to miss.     The prosecution’s first questions on cross-

examination focused on defendant’s status and set the tone for

what followed.     To compound the error, the trial court issued

conflicting instructions about whether jurors could consider the

evidence to determine whether defendant “follows the rules of

society.”     The final instruction correctly told the jury not to

consider defendant’s immigration status “to conclude that he is

less likely to comply with our society’s rules and therefore

committed the crimes in the indictment.”     But the jury was not

told that it could not rely on the evidence to assess

defendant’s credibility.

    The better course would have been to strike the evidence

altogether and tell the jury not to consider it at all.

Instead, the evidence remained part of the trial record.

Without a clear instruction to disregard the evidence entirely,

                                   17
we cannot be certain whether and how the jury might have relied

upon it during deliberations.

                                 IV.

    We turn now to the failure to instruct the jury on

identification evidence, which the State appropriately

recognizes was an error.   R.D.’s identification of defendant was

central to this case.   She was the sole witness to identify

defendant, and his defense at trial was misidentification.      When

eyewitness identification is a “key issue,” the trial court must

instruct the jury how to assess the evidence -- even if

defendant does not request the charge.   State v. Cotto, 
182 N.J.
 316, 325 (2005).

                                 A.

    This Court has addressed the topic of eyewitness

identification on a number of occasions in recent years.   In

1999, in State v. Cromedy, the Court considered social science

studies that revealed that identifications are less reliable

when a witness and a perpetrator are of different races.   
158 N.J. 112, 121 (1999).   The Court concluded that jury

instructions on the reliability of cross-racial identifications

are required in certain cases.   Id. at 132.   Years later, in

State v. Romero, the Court recognized that “[j]urors likely will

believe eyewitness testimony 'when it is offered with a high

level of confidence, even though the accuracy of an eyewitness

                                 18
and the confidence of that witness may not be related to one

another at all.’”    
191 N.J. 59, 75 (2007) (quoting Watkins v.

Sowders, 
449 U.S. 341, 352 (1981) (Brennan, J., dissenting)).

Based on additional social science evidence, the Court ordered

that juries be instructed on that point when appropriate.     Ibid.

    In 2011, the Court examined expert testimony and scientific

studies about a number of variables that affect human memory.

Henderson, 
208 N.J. 208.    Based on that body of evidence, the

Court directed that new jury instructions be developed.     Id. at

298-99.   The following year, the Court approved new model jury

charges on eyewitness identification, which addressed various

factors like memory decay, stress, and the duration of the

crime.    Model Jury Charge (Criminal), “Identification: In-Court

and Out-Of-Court Identifications” (rev. July 9, 2012).    The

charges went into effect on September 4, 2012 -- more than a

year before the trial in this case began.

    Even though the alleged assaults here took place before the

effective date of the new model charge, the court should have

used the revised charge at trial in 2013.   In much the same way,

new rules of evidence that do not lower the level of proof

needed to convict a defendant generally apply at trial, even if

they are adopted after the commission of a crime but before

trial.    See State v. Rose, 
425 N.J. Super. 463, 468-70 (App.



                                 
19 Div. 2012) (discussing Carmell v. Texas, 
529 U.S. 513, 522

(2000)).

    The jury in this case should have been instructed about

some of the factors discussed in Henderson.     R.D. initially made

an identification several weeks after the offense.    At first,

she said she was 75 percent certain; soon after, she stated that

she was 100 percent sure.    In her direct examination at trial,

R.D. told the jury that she was “[a] hundred percent sure.”       At

a charge conference, the parties and the court should have

considered whether charges on memory decay, confidence, stress,

duration, lighting, and other factors were warranted.

Henderson, 
208 N.J. at 261-62, 264, 267, 296-99.

    The jury, however, did not hear any charge on

identification.    Neither the defendant nor the public are well-

served when that happens in a case like this.    To be sure, the

judge should have given the charge on his own because R.D.’s

identification was a “key issue.”     Cotto, 
182 N.J. at 325.   But

counsel for the State and the defense are very much a part of

the trial process as well.   It is imperative that both sides

carefully evaluate and propose relevant jury instructions before

and during trial, rather than after a verdict.    That practice

helps protect defendants against unfair trials, avoids putting

witnesses through the ordeal of testifying twice, and respects

the jury’s time.

                                 20
     The Judiciary has compiled model criminal jury charges that

are available online.   https://www.judiciary.state.nj.us/

attorneys/criminalcharges.html.    We invite the State and the

Public Defender to consider how best to use those resources in a

systematic way in advance of trial.3

                                  B.

     The missing instruction on identification is reviewed for

plain error.   State v. Cole, 
229 N.J. 430, 455 (2017); Cotto,


182 N.J. at 326.   The error must be evaluated “in light of the

overall strength of the State’s case.”    State v. Galicia, 
210 N.J. 364, 388 (2012) (quoting State v. Walker, 
203 N.J. 73, 90

(2010) (internal quotation marks omitted)).

     Defendant’s convictions rest largely on the testimony of

four victims, only one of whom could identify him.   No forensic

evidence linked defendant to the crimes charged, and no other

witnesses observed or could corroborate any of the incidents.

     The witnesses’ descriptions of their assailants varied.

Two described a man with a ponytail, one said he had short hair,

and the fourth did not describe his features.    Only two victims

described the attacker’s race:    one said he was a Hispanic male,


3  The trial court ably instructed the jury that the State had
the burden to prove each element of the offenses charged and
that defendant was the actor who committed the crimes. As a
result, we need not address at length defendant’s argument,
based on Cotto, 
182 N.J. at 326, that that aspect of the charge
was insufficient.
                                  21
and the other described a light-skinned African American or

Hispanic male.     For the Dumont attacks, which were twenty

minutes apart, the first victim said her assailant wore a

sweatshirt and cargo pants, and the second described a dark

shirt and dark shorts.

    In addition, although the assaults shared some

similarities, they differed from one another in key ways.        R.D.

testified that a man grabbed her buttocks from behind.         D.J. and

A.B. each explained how a man reached into her pants and touched

her genitalia.     And A.M. recounted how a man grabbed her arms

tightly behind her.     Only one incident involved a bicycle.      The

assaults were not “signature” crimes that, on their own, suggest

the same person carried out each attack.      See Cofield, 
127 N.J.

at 336.    One of the victims, in fact, did not describe a sexual

assault.

    Defendant’s statement to the police, which he recanted at

trial, offers some corroboration.      Yet he also denied the core

of the accusations during the interview.      In addition, as the

State conceded at oral argument, the statement contains no

details about the assault on A.M.      In fact, there was no

evidence introduced at trial of an attempted sexual assault

against A.M.     The jury properly acquitted defendant on that

charge.



                                  22
    Looking at all of the proofs together, the evidence against

defendant was not overwhelming, as the State suggests.

                                 V.

    Even if an individual error does not require reversal, the

cumulative effect of a series of errors can cast doubt on a

verdict and call for a new trial.     State v. Jenewicz, 
193 N.J.
 440, 473 (2008).   For that reason, we need not decide if either

error in isolation warrants reversal.

    Here, the jury received no guidance about how to assess the

single identification of defendant -- a critical issue at trial

that defendant disputed.   And the jurors were not told to ignore

provocative evidence about defendant’s immigration status.

Together, those errors undermined defendant’s right to a fair

trial.   They raise serious questions about whether the outcome

was just, particularly in light of the strength of the evidence

presented.   See R. 2:10-2.   We therefore have no choice other

than to vacate defendant’s convictions.

                                VI.

    For the reasons set forth above, we vacate defendant’s

convictions and remand the case to the Law Division for a new

trial.



     JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.


                                 23