In State v. Anthony (A-11-17/079344)(Decided March 13, 2019), the Supreme Court of New Jersey clarified the process law enforcement officers must follow when they ask eyewitnesses to try to identify a suspect. In doing so, the state’s highest court mandated several new safeguards for the admission of eyewitness identification evidence.
New Jersey Law Governing Witness Identification
The State of New Jersey has procedures in place governing the admission of eyewitness identification evidence. In State v. Delgado, 188 N.J. 48 (2006), the court required “that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results.” Delgado encouraged but did not mandate the use of tape recorders to preserve identification procedures.
In State v. Henderson, 208 N.J. 208 (2011), the New Jersey Supreme Court again revised the legal framework for the admission of eyewitness identification evidence. It held that when defendants can show some evidence of suggestiveness tied to a system variable, they are entitled to explore all relevant system and estimator variables at a pretrial hearing to try to challenge the admissibility of the identification. “System variables” are those that are within the control of law enforcement, such as lineup procedures and feedback, while “estimator variables” are those that the legal system does not control, like lighting conditions, stress, and memory decay.
In Henderson, the New Jersey Supreme Court not only affirmed Delgado, but added additional safeguards. To guard against confirmatory feedback, the court required law enforcement to record a witness’ statement of confidence “in the witness’ own words before any possible feedback.” Henderson added that “if an eyewitness’ confidence was not properly recorded soon after an identification procedure, and evidence revealed that the witness received confirmatory feedback,” trial judges could bar any testimony at trial about the witness’ level of confidence.
In response to Delgado and Henderson, the Criminal Practice Committee proposed a court rule on recording requirements for identification procedures, which the Court adopted in 2012. Rule 3:11 provides that “[a]n out-of-court identification resulting from a photo array, live lineup, or showup identification procedure conducted by a law enforcement officer shall not be admissible unless a record of the identification procedure is made.” In addition to mandating the form and contents of the record, the rule also identifies the remedies available if the record “is lacking in important details . . . and if it was feasible [for law enforcement] to obtain and preserve those details.” The trial “court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, and/or fashion an appropriate jury charge to be used in evaluating the reliability of the identification.”
Facts of State v. Anthony
Eugene Roberts pulled into the driveway of his home in Newark. As Roberts got out of his car, three men approached him. One of the men pointed a revolver at Roberts’ torso and demanded money. Another man, later identified as defendant Ibnmauric Anthony, asked for Roberts’ car keys. The man searched the car as Roberts watched and then tossed the keys to the ground before all three walked away. Roberts called the police and gave a statement.
Two days later, Roberts returned to the police station to look at a photo array. Detective Karima Hannibal administered the array. She was not involved in the case and did not know the suspect’s identity. Detective Hannibal read a series of instructions to Roberts, showed him the array, and recorded his response. She used three pre-printed Newark Police Department forms to document the identification procedure.
A grand jury indicted Anthony, who moved to suppress the out-of-court identification and asked for a pretrial hearing under United States v. Wade, 388 U.S. 218 (1967) and Henderson. Anthony argued that it was improper for law enforcement officers not to memorialize or record the dialogue during the viewing of the photo array because there was no way to know if any impermissibly suggestive behavior took place.
The trial court denied the defendant’s motion and request for a pretrial hearing. Trial began, and the case rested on Roberts’ identification. To instruct the jury, the trial court used the model jury charge for eyewitness identification, Model Jury Charges (Criminal), “Identification: In-Court and Out-of-Court Identifications” (Identification Charge). Anthony did not object or ask for a supplemental charge about the administration or recording of the photo array. The jury convicted defendant on all counts.
The Appellate Division affirmed Anthony’s conviction. The panel found that “the failure to record Roberts’ actual words” of confidence was not “a sufficient violation (if a violation at all) of Delgado and Rule 3:11 to warrant exclusion of the evidence.” The Appellate Division also rejected Anthony’s belated challenge that it was plain error for the court not to instruct the jury about that circumstance.
NJ Supreme Court’s Decision in State v. Anthony
The New Jersey Supreme Court remanded the case back to the trial court to determine if a new trial is warranted. “Because Rule 3:11 was not fully followed, and because the record does not reveal whether the shortcomings were technical or substantive, the Court remands for a full hearing consistent with Wade and Henderson,” the court ruled.
In reaching its decision, the court made several changes to the way eyewitness identifications must be conducted in New Jersey. To more clearly state the order of preference for preserving an identification procedure, the court held that Rule 3:11(b) should be revised accordingly:
Officers are to record all identification procedures electronically in video or audio format. Preferably, an audio-visual record should be created. If it is not feasible to make an electronic recording, officers are to contemporaneously record the identification procedure in writing and include a verbatim account of all exchanges between an officer and a witness. If a contemporaneous, verbatim written account cannot be made, officers are to prepare a detailed summary of the identification as soon as practicable. The Court relies on its supervisory powers to require, further, that when it is not feasible to make an electronic recording of an identification procedure, law enforcement officers must document the reasons for not having done so. The same requirement applies when officers cannot prepare a contemporaneous, verbatim written account.
The New Jersey Supreme Court also modified the framework first outlined in Henderson. Under the new framework, a defendant will be entitled to a pretrial hearing on the admissibility of identification evidence if Delgado and Rule 3:11 are not followed and no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared. In such cases, defendants will not need to offer proof of suggestive behavior tied to a system variable to get a pretrial hearing.
The New Jersey Supreme Court next turned to the appropriate jury charge for a violation of Rule 3:11. It noted that the Identification Charge includes the following language on pre-identification instructions: “If you find that the police [did/did not] give this instruction to the witness, you may take this factor into account when evaluating the identification evidence.” The court went on to hold that similar language can be used to instruct a jury about the failure to preserve an identification procedure. As the court explained:
In such cases, jurors should be told that officers are required to record identification procedures electronically; if that is not feasible, they are required to prepare a contemporaneous, verbatim written account of the procedure. If the police did not follow that practice, and, for example, did not capture the dialogue between the witness and the officer, or record a statement of confidence in the witness’ own words, the jury may take that into account when it evaluates the identification evidence.
Finally, turning to the facts of the case, the New Jersey Supreme concluded that the officers did not comply with Rule 3:11 or Delgado in full. “Under the circumstances, perhaps the best option was one not available at the time: a hearing to assess the reliability of the identification even though defendant could not present evidence of suggestiveness,” the court noted. “A hearing would have benefitted not only defendant but also the trial court, by enabling it to fulfill its gatekeeping role.”
The New Jersey Supreme Court remanded to the trial court for such a hearing. “At this time, without a more complete record, the Court does not find that the absence of a supplemental charge was plain error,” the court held. It further noted that the defendant would have the opportunity to challenge the verdict on remand.
“If damaging evidence about feedback, witness confidence, or some other factor that affects memory is developed at the hearing, he may have a strong case and be entitled to a new trial,” the court wrote. “On the other hand, if it turns out that the police essentially tracked Roberts’ full statement of confidence on the photo display report form and offered no confirmatory feedback, defendant would be hard-pressed to show that a technical violation of Rule 3:11(d) was ‘clearly capable of producing an unjust result.’”