In State v. Kwesi Green, (A-56/57-17/080562) (Decided June 23, 2019), the Supreme Court of New Jersey raised questions about the use of electronic databases to identify suspects in criminal cases. It will also require new safeguards going forward.
“The Court proposes revisions to Rule 3:11 to offer clearer guidance on which photos officials should preserve when they use an electronic database,” the court wrote. “In addition, to guard against misidentification, the Court places on the State the obligation to show that an eyewitness was not exposed to multiple photos or viewings of the same suspect.”
Facts of State v. Kwesi Green
On February 11, 2014, a woman was robbed at gunpoint while she waited at a bus stop in Newark. Soon after, the victim described her assailant to Newark Police Detective Donald Stabile and another officer at the police station. She said the man was about 5’7” tall, weighed between 130 and 150 pounds, had dark skin, a round face, short hair, and no facial hair, and was in his early twenties. The victim said she “got a very good look” at her assailant and would be able to identify him.
Based on her description, Detective Stabile input certain criteria into a digital database of photos, The victim identified her assailant from an extensive database of digital photos known as the HIDTA DataWorks PhotoManager System (HIDTA system or database). The HIDTA system for the NY/NJ region has millions of photos, including those of all adults arrested by the Newark Police Department. If someone is arrested in the relevant area more than once, the system will have multiple photos of the individual.
During the identification process, the victim was mistakenly allowed to review the photos through an investigative mode of the database meant to be used by law enforcement officers, not eyewitnesses. In addition, the police saved only the photo the victim ultimately selected of the defendant. In addition, the system contained multiple photos of defendant.
Defendant Kwesi Green was charged with first-degree robbery and weapons offenses. He filed a motion to suppress the victim’s out-of-court identification, which the trial court granted. On appeal, a majority of the Appellate Division panel found the trial court properly determined that eleven additional photos should have been preserved under Rule 3:11, which “requires that when digital photos are shown during an identification procedure, a record of the photos used must be made.” The majority observed that its interpretation was consistent with the history of the Rule, the Court’s “longstanding policy” to provide “broad discovery” to criminal defendants, and “concerns about identification procedures” discussed in State v. Delgado, 188 N.J. 48 (2006), and State v. Henderson, 208 N.J. 208 (2011). However, the majority vacated the order of suppression and remanded for the trial judge to consider the full range of remedies in Rule 3:11(d).
New Jersey Supreme Court’s Decision in State v. Kwesi Green
The New Jersey Supreme Court held that the trial court properly suppressed the identification. “It is the confluence of factors in this appeal — the witness’s use of investigative mode during the identification process, the failure to preserve all but one photo, and defendant’s history of multiple recent arrests in Newark, which would have been captured in the HIDTA system the witness viewed — that casts doubt on the reliability of the identification process and supports the trial court’s conclusion,” the court explained.
In its opinion, the court noted that the Attorney General provided information about the use of electronic and hard copy mug books throughout the State. It revealed that just 3 of 479 departments use only paper mug books, in contrast to the 145 departments that use electronic or digital databases that contain photographs. The court went on to raise concerns that systems like the HIDTA system may allow multiple viewings of the same person during an identification procedure, which can create a risk of mugshot exposure — the possibility that a witness will make an identification based on a memory of an earlier photo and not the original event. Accordingly, it established a new procedure going forward:
When relevant, the State will have the obligation to demonstrate that an eyewitness was not exposed to multiple photos or viewings of the same suspect. If the prosecution cannot satisfy that burden, trial judges are to consider that factor when they assess whether the identification evidence can be admitted at trial. If there is a “very substantial likelihood of irreparable misidentification,” the evidence should be excluded.
The court also proposed revisions to Rule 3:11 to offer clearer guidance on which photos officials should preserve when they use an electronic database to identify a suspect. It wrote:
To allow for appropriate review of an out-of-court identification procedure that used a digital database or paper mug book, administrators should preserve (1) the photo of the suspect the witness selected, along with all other photos on the same screen or page, and (2) any photo that a witness says depicts a person who looks similar to the suspect, along with all other photos on that screen or page. That requirement will establish a record of the photos viewed at pivotal moments: when the witness meaningfully narrows the field of images and ultimately makes a final selection. It will also allow all parties and the court to assess with care the nature of the identification process and any suggestive aspects of the process. Aside from the risk of multiple viewings addressed above, persuasive reasons have not been presented to require that every photo reviewed during the entire identification procedure be preserved.
The New Jersey Supreme Court delayed the implementation of its ruling, aside from defendant Green, until 30 days from the date the Court approves revisions to Rule 3:11. At that point, its decision will apply prospectively.