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Date: 04-14-2019
Case Style:
State of New Jersey v. Ibnmauric Anthony, a/k/a Ibnmaurice Anthony and Ibnmaurice Rasha Anthony
Case Number: A-11 September Term 2017 079344
Judge: Stuart Rabner
Court: SUPREME COURT OF NEW JERSEY
Plaintiff's Attorney: Lauren S. Michaels, Assistant Deputy Public Defender
Defendant's Attorney: Lucille M. Rosano
Description:
This appeal raises issues about the process law enforcement officers
must follow when they ask eyewitnesses to try to identify a suspect. When
officers conduct an identification procedure, they should exercise great care to
avoid sending signals that could alter a witness’ memory and lead to a
mistaken identification. They must also document the process.
The case involves an armed robbery. The victim’s identification of one
of his assailants was the only evidence that led to defendant’s conviction.
When the witness first identified defendant from a photo array, an officer
memorialized certain details about the process on three pre-printed forms. The
officer did not record the process electronically or prepare a contemporaneous,
verbatim written account of what took place.
The three forms were meant to follow existing case law. See State v.
Delgado, 188 N.J. 48, 63 (2006). But they did not capture the entire dialogue
3
between the witness and the officer and did not recount the witness’ statement
of confidence in his own words. Defendant also contends that there is no
detailed summary of the exchange the victim had with a detective who asked
him to come to the police station to view the array. All of those items are
required by a court rule that instructs law enforcement how to record out-of
court identification procedures, like a lineup or photo array. See R. 3:11(c).
Before trial, defendant asked for a pretrial hearing to explore the
admissibility of the identification. The trial court denied the request in
accordance with State v. Henderson, 208 N.J. 208, 288-89 (2011), because
defendant could not present evidence of suggestiveness on the part of law
enforcement from the existing record.
The appeal thus poses questions about the precise meaning and scope of
Rule 3:11 as well as the proper remedies when Delgado and the Rule are
violated. In response, today’s ruling addresses the following points: (1) it
clarifies Rule 3:11 and emphasizes that law enforcement officers are to record
identification procedures electronically, preferably by video, if feasible; (2) it
requires officers to document their reasons for not recording an identification
procedure electronically or preparing a contemporaneous, verbatim written
account of the process; (3) it modifies Henderson and holds that defendants are
entitled to a pretrial hearing on the admissibility of a witness’ identification
4
when no electronic or contemporaneous, verbatim written recording of the
identification procedure is prepared, even without evidence of suggestiveness
on the part of law enforcement; and (4) it proposes a change to the model jury
charge for use when Delgado and Rule 3:11 are not followed.
Because the Rule was not fully followed here, and because we cannot
tell from the record whether the shortcomings were technical or substantive in
nature, we remand for a full hearing consistent with United States v. Wade,
388 U.S. 218 (1967), and Henderson. Based on the evidence developed at the
hearing, the trial court will be in the best position to determine whether a new
trial is warranted.
I.
Between 2 and 3 a.m. on December 18, 2012, Eugene Roberts pulled
into the driveway of his home in Newark. The area was well-lit by nearby
streetlights and two motion-detector lights on his garage. As Roberts got out
of his car, three men in their twenties approached him. None of them wore
masks. Roberts turned around and looked at their faces from three to five feet
away.
One of the men pointed a revolver at Roberts’ torso and demanded
money. When Roberts said he had none, the gunman demanded his wallet.
Roberts handed the wallet to another man, who confirmed it had no money
5
inside. The third man, later identified as defendant Ibnmauric Anthony, then
asked for Roberts’ car keys. From an arm’s length away, Roberts looked at the
third man and handed over his keys. The man entered the car and searched the
glove compartment and under the front and rear seats. The interior dome light
was on while he searched, and Roberts watched as the man rifled through the
car.
Immediately after the search, the gunman told Roberts to get on his
knees and face the car. Roberts complied. The gunman then put the revolver
to Roberts’ head and said, “I ought to kill you.” Roberts testified that he
remained calm, based on his training in the Marine Corps years before.
Next, the man who searched the car tossed the keys to the ground, and
all three walked away. They threatened to shoot Roberts if he turned around.
Roberts nonetheless glanced over his shoulder and saw them get into a gray car
and drive away. Roberts estimated that the entire incident lasted about seven
to eight minutes.
Roberts then entered his home, told his wife what happened, and called
the police. Soon after, officers arrived and took Roberts to the police station
where he gave a statement. Roberts described the height, hairstyle, and
clothing of each assailant. He said the man who searched his car was thin,
6
5’11”, wore light-colored clothing, and sported “dreads.” Roberts did not
describe the assailant’s complexion, eye color, or the shape of his face.
Two days later, Detective Pablo Gonzales called Roberts and asked him
to return to the police station to look at a photo array. The Detective had
prepared an array of six photos of men with dreadlocks. The array included a
photo of defendant taken one year before.
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.
Detective Hannibal testified that she first read the “Photo Display
Instructions” form aloud, which both she and Roberts then signed. Roberts
confirmed that he reviewed the instructions. The instructions sheet contained
the following information:
In a moment, I will show you a number of photographs one at a time. You may take as much time as you need to look at each of them. You should not conclude that the person who committed the crime is in the group merely because a group of photographs is being shown to you. The person who committed the crime may or may not be in the group, and the mere display of the photographs is not meant to suggest that the police believe that the person who committed the
7
crime is in one of the photographs. You do not have to select any photograph.
. . . Tell me immediately if you recognize anyone in one of the photographs.
. . . .
If you select a photograph, please do not ask me whether I agree with or support your selection. I do not know who[] the suspect is, if they are in the line up, or what photograph he/she may be present. It is your choice alone that counts.
Roberts selected the third photo -- a photo of defendant -- and wrote the
following by hand on the “Photograph Identification Form”: “#3” was “[t]he
man who ask[ed] me for my car keys during the robbery.” Roberts signed the
form underneath the following statement:
Det. K. Hannibal of the Newark Police Department is the person who asked me to view these photographs. Neither he/she nor anyone else used any threats or promises, urged or prompted me in any way to cho[o]se any of the aforementioned photographs. I have been given an opportunity to read this form (or had it read to me) and have been asked to sign my name to it, if the contents are the truth to the best of my knowledge and belief.
Detective Hannibal also completed a third form, a “Photo Display
Report.” In a section marked “Comments and Demeanor of Witness,” she
wrote that Roberts was “confident in his choice.” She also checked a box to
note that he did not “ask to see any photos again.” At trial, Detective Hannibal
8
told the jury the same thing: that Roberts “was calm and confident in the
choice that he made.” Roberts likewise testified that he did not feel pressured
to select a photo and “was very confident” in his selection.
A grand jury in Essex County indicted defendant and charged him with
four offenses: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2,
15-1(b) (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two);
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count
three); and second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count four).
Defendant moved to suppress the out-of-court identification and asked
for a pretrial hearing under Wade and Henderson. Among other points,
defendant argued that it was improper under Delgado for law enforcement
officers not to memorialize or record the dialogue between Roberts and
Detective Hannibal during the viewing of the photo array. Without that
information, defendant claimed, there was no way to know if any
impermissibly suggestive behavior took place.
The trial court denied defendant’s motion and request for a pretrial
hearing. The court explained that defendant had not presented evidence of
suggestiveness tied to a system variable -- that is, a variable within the control
of law enforcement. See Henderson, 208 N.J. at 283. The court also found
9
that Detective Hannibal’s pre-identification instructions ensured that Roberts’
“identification was, in fact, his own” and not the product of suggestive
behavior by law enforcement. The court concluded the identification was
admissible.
Trial began on May 14, 2015. Roberts testified about the robbery and
identified defendant in court. Detectives Gonzales and Hannibal also testified,
as did an officer who responded to the scene. Defendant presented a defense
investigator who had interviewed Roberts. The investigator’s testimony
suggested that Roberts had made inconsistent statements about the robbery and
his assailants, which Roberts disputed.
The case rested on Roberts’ identification. The prosecution introduced
no physical or other corroborative evidence that linked defendant to the
robbery.
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” (rev. July 19, 2012) (Identification
Charge). The charge to the jury included guidance on the witness’ opportunity
to view the assailant; the effects of stress, duration, weapon focus, distance,
lighting, and changed appearance; prior descriptions; and time elapsed. The
10
charge also contained cautionary language on how to assess a witness’ stated
level of confidence:
Although nothing may appear more convincing than a witness’ categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness’ level of confidence, standing alone, may not be an indication of the reliability of the identification.
The court returned to this theme soon after and added, “[a]lthough some
research has found that highly confident witnesses are more likely to make
accurate identifications, eyewitness confidence is generally an unreliable
factor of accuracy.”
The charge also told jurors to consider whether the out-of-court
identification “was the result of a suggestive procedure.” On that subject, the
court offered instructions on lineup composition, fillers, double-blind
administration, and pre-identification advice.
Defendant did not object to the charge. Nor did he ask for a
supplemental charge about the administration or recording of the photo array.
The jury convicted defendant on all counts on May 22, 2015. The trial
court later sentenced defendant to a seventeen-year term on count two, with an
11
eighty-five percent parole disqualifier, and merged counts one and four.
Defendant was sentenced to a concurrent nine-year term on count three.
Defendant appealed, and the Appellate Division affirmed his conviction.
He raised two claims that are relevant to this appeal. First, he claimed the out
of-court identification should have been inadmissible because the police failed
to record, in Roberts’ own words, his statement of confidence. Second, he
argued it was plain error for the court not to instruct the jury about that
circumstance.
The Appellate Division disagreed. It found
no hint or suggestion anywhere in this record that anyone prompted or influenced Roberts in any way to select defendant’s photograph. Most importantly, with respect to the recordation deficiency asserted by defendant, there is no evidence or suggestion that after making the identification, Roberts was subjected to any positive feedback that might have had the capacity to distort his confidence level, this being the primary purpose of the requirement for recording the witness’ actual words expressing confidence.
Looking at the record as a whole, the panel concluded 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.” Any error, in the panel’s judgment, “was harmless in the overall
circumstances of this case.”
12
The Appellate Division also rejected defendant’s belated challenge to
the jury charge. The panel observed that “[a] contemporaneous written record
was made” and “[t]he identification charge given was thorough and correct.”
Under the circumstances, the panel did not find that the absence of a
supplemental charge had “a clear capacity to bring about an unjust result.”
We granted certification “limited to the issue of the State’s failure to
comply with the requirements of” Delgado. 231 N.J. 110 (2017). We also
granted leave to the Attorney General and the American Civil Liberties Union
of New Jersey (ACLU) to appear as amici curiae.
II.
Defendant contends that the admission of the out-of-court identification,
despite the failure of the police to comply with Delgado and Rule 3:11, denied
him a fair trial. Defendant argues that the police unjustifiably failed to record
the identification procedure electronically, failed to provide a verbatim
account of the complete dialogue between the officers and Roberts, and did not
record Roberts’ statement of confidence in his own words, as required.
Defendant submits that the wrongful admission of the identification evidence
tainted the trial and amounted to harmful error. He claims he is entitled to be
retried without the identification evidence.
13
In the alternative, defendant argues his conviction should be reversed
because the failure to provide the jury with a cautionary charge was plain
error. Defendant adds that Rule 3:11 should be amended to require video
recording when feasible, and to provide for a cautionary instruction whenever
there is no video record.
The ACLU advances similar arguments. It contends that the State’s
failure to contemporaneously record the out-of-court identification violated
this Court’s precedents and the rules of court and requires that defendant’s
conviction be reversed.
The State argues that the trial court properly admitted Roberts’ out-of
court identification because there was no evidence of suggestiveness in the
identification procedure and the identification was reliable. The State
contends that the three forms the police used satisfied Delgado and Rule 3:11.
The State further submits that the trial court properly declined to hold a
pretrial hearing because defendant failed to offer some evidence of
suggestiveness. Because the identification was nevertheless reliable, the State
contends, any error was harmless.
The State also argues that the trial court gave an appropriate instruction
on how to evaluate Roberts’ identification of defendant and that any error did
not rise to the level of plain error. Finally, the State claims this Court should
14
decline to consider defendant’s request to amend Rule 3:11 and that the
suggested amendment is not needed because the Rule already allows for
electronic recordation when feasible.
The Attorney General agrees that the trial court properly admitted
Roberts’ out-of-court identification because there was nothing suggestive in
the identification procedure. In such a case, the Attorney General argues, to
suppress a reliable identification because the witness’ exact language was not
documented would amount to a per se bar and would frustrate the truth-seeking
function of the criminal justice system.
III.
A.
Henderson explored the subject of eyewitness identification at length.
The opinion observed that “memory is malleable” and noted that relevant
scientific evidence “revealed a troubling lack of reliability in eyewitness
identifications.” 208 N.J. at 218. The Court acknowledged that “eyewitness
misidentification is the leading cause of wrongful convictions across the
country.” Ibid.
Henderson reviewed the social science research and assessed “an array
of variables [that] can affect and dilute memory and lead to
misidentifications.” Ibid. Those factors include (1) “system variables” that
15
are within the control of law enforcement, like lineup procedures and
feedback, and (2) “estimator variables” that the legal system does not control,
like lighting conditions, stress, and memory decay. Ibid.
In the end, the Court concluded that the then-prevailing standard to
assess eyewitness identifications -- the test derived from Manson v.
Brathwaite, 432 U.S. 98 (1977), and State v. Madison, 109 N.J. 223 (1988) --
did “not offer an adequate measure for reliability or sufficiently deter
inappropriate police conduct.” Henderson, 208 N.J. at 218. The Court
therefore revised the legal framework for the admission of eyewitness
identification evidence. Henderson 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. Id. at 288-93.
Confirmatory feedback is one of a number of variables that can affect
memory. Studies have shown that positive feedback can distort memory and
“create a false sense of confidence.” Id. at 255. That is a significant concern
because of how much weight jurors place on the level of confidence a witness
displays at trial. Id. at 274. As the Court observed in State v. Romero,
“[j]urors likely will believe eyewitness testimony ‘when it is offered with a
high level of confidence, even though the accuracy of an eyewitness and the
16
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)). It is thus critical for law enforcement to record a
witness’ full statement of confidence when an identification is first made --
before any possible feedback. Henderson, 208 N.J. at 254; see also Delgado,
188 N.J. at 63.
The framework the Court adopted in Henderson “avoid[ed] bright-line
rules that would lead to suppression of reliable evidence any time a law
enforcement officer [made] a mistake.” 208 N.J. at 303. The Court
recognized that in most cases, identifications will be presented to the jury
because the threshold for suppression is high. Ibid. Defendants must show “a
very substantial likelihood of irreparable misidentification.” Id. at 289 (citing
Manson, 432 U.S. at 116). As a result, the Court addressed the need to educate
jurors with enhanced jury charges “about factors that can lead to
misidentifications.” Id. at 303.
B.
Central to this appeal is a consistent line of precedential rulings on the
need to make a record of an identification procedure. The decisions specify
what law enforcement officers must preserve.
17
In 1972, the Court found that “counsel need not be present” at a pre
indictment identification procedure. State v. Earle, 60 N.J. 550, 552 (1972).
The Court added that
enforcement authorities should nonetheless make a complete record of an identification procedure if it is feasible to do so. . . . The identity of persons participating in a [live] lineup should be recorded, and a picture should be taken if it can be. If the identification is made or attempted on the basis of photographs, a record should be made of the photographs exhibited. We do not say a failure hereafter to follow such procedures will itself invalidate an identification, but such an omission, if not explained, should be weighed in deciding upon the probative value of the identification, out-of-court and in-court.
[Ibid.]
The Court went further in Delgado. It exercised its supervisory powers
under the State Constitution “to require 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.” 188 N.J. at 63. Delgado stressed that
“[p]reserving the words exchanged . . . may be as important as preserving” a
picture of a live lineup or an array. Ibid. “When feasible, a verbatim account
of any exchange between the law enforcement officer and witness should be
18
reduced to writing. When not feasible, a detailed summary of the
identification should be prepared.” Ibid.1
Delgado encouraged but did not mandate the use of tape recorders to
preserve identification procedures. Ibid. In addition, the Court asked the
Criminal Practice Committee to prepare a rule to incorporate the above
principles. Id. at 64.
In Henderson, the Court reaffirmed Delgado and noted that, “[o]f course,
all lineup procedures must be recorded and preserved in accordance with”
Delgado’s holding. 208 N.J. at 252. To guard against confirmatory feedback,
the Court again exercised its supervisory power to require law enforcement to
record a witness’ statement of confidence “in the witness’ own words before
any possible feedback. . . . [O]fficers should make a full record -- written or
otherwise -- of the witness’ statement of confidence once an identification is
made.” Id. at 254.
Henderson added that “if an eyewitness’ confidence was not properly
recorded soon after an identification procedure, and evidence revealed that the
1 Delgado commended the Attorney General’s Office for issuing guidelines in 2001 that directed officers to “[r]ecord both identification and nonidentification results in writing, including the witness’ own words regarding how sure he or she is.” 188 N.J. at 61 (quoting Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures 1 (Apr. 18, 2001)).
19
witness received confirmatory feedback,” trial judges could bar any testimony
at trial about the witness’ level of confidence. Id. at 298.
C.
In Henderson, the Court asked the Criminal Practice Committee and the
Committee on Model Criminal Jury Charges to revise the charge on eyewitness
identification. Ibid. The Court adopted an enhanced set of instructions in
2012. See Identification Charge. The charge addresses general concerns about
eyewitness identifications and includes instructions about particular variables
that should be used if they apply in a given case. Ibid. As noted earlier, the
trial judge here relied on the model charge and instructed the jury about
multiple relevant factors.
D.
In response to Delgado and Henderson, the Criminal Practice Committee
in 2012 proposed a court rule on recording requirements for identification
procedures. Report of the Supreme Court Criminal Practice Committee on
Revisions to the Court Rules Addressing Recording Requirements for Out-of
Court Identification Procedures and Addressing the Identification Model
Charges App. A (Feb. 2, 2012). The Court adopted Rule 3:11 later the same
year. See R. 3:11 (“Record of an Out-of-Court Identification Procedure”).
20
Section (a) 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.”
Section (b) speaks to the method of recording and reads as follows:
A law enforcement officer shall contemporaneously record the identification procedure in writing, or, if feasible, electronically. If a contemporaneous record cannot be made, the officer shall prepare a record of the identification procedure as soon as practicable and without undue delay. Whenever a written record is prepared, it shall include, if feasible, a verbatim account of any exchange between the law enforcement officer involved in the identification procedure and the witness. When a written verbatim account cannot be made, a detailed summary of the identification should be prepared.
Section (c) specifies what the record should include. Among other
items, it should detail
(2) the dialogue between the witness and the officer who administered the procedure;
. . . .
(7) a witness’ statement of confidence, in the witness’ own words, once an identification has been made; and
(8) the identity of any individuals with whom the witness has spoken about the identification, at any time before, during, or after the official identification procedure, and a detailed summary of what was said. This includes the identification of both law
21
enforcement officials and private actors who are not associated with law enforcement.
If the record “is lacking in important details . . . and if it was feasible
[for law enforcement] to obtain and preserve those details,” the Rule identifies
the following three remedies: 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.” R.
3:11(d).
IV.
The parties debate the meaning of different parts of the Rule, and their
dispute highlights ways in which it can be clarified and strengthened.2
Prior case law calls for electronic recording of identification procedures,
if feasible. See Delgado, 188 N.J. at 63 (“electronic recordation is advisable”).
The current court rule follows that approach. It favors electronic recording
and verbatim written recordings, both of which are superior to detailed written
summaries. See R. 3:11(b).
2 For example, the parties debate whether and how the Rule prioritizes among different methods of recording. Section (b) says that an officer shall record the identification procedure “in writing, or, if feasible, electronically.” R. 3:11(b) (emphasis added). The Rule does not say to record “electronically, if feasible, but if not, then in writing.” We agree that the current Rule can benefit from greater clarity.
22
With the proliferation of recording devices in recent years, the Rule’s
aim is easier to achieve today than in the past. Police departments of all sizes
now have access to devices that can electronically record and preserve
identification procedures. And departments already use recording equipment
to investigate crimes. For more than a decade, law enforcement has been
required to record electronically all custodial interrogations at a police station
when the person being questioned is charged with murder, kidnapping,
aggravated manslaughter, robbery, aggravated sexual assault, burglary,
aggravated arson, crimes involving the possession or use of a firearm, and
other offenses. See R. 3:17(a); see also State v. Hubbard, 222 N.J. 249, 263
(2015). In such cases, a recording must be made unless it is not feasible to do
so or another exception applies. R. 3:17(b).
Electronic recordings are preferable for identification procedures as
well. Audio captures not only the words spoken between an administrator and
an eyewitness but also tone, and video preserves expressions or gestures as
well. (In this opinion, the term “video” refers to audio-visual recordings.)
That type of information can help the trial judge and the jury accurately assess
witness confidence, any feedback, and the overall reliability of an
identification -- and thus help guard against mistaken identifications.
23
To more clearly state the order of preference for preserving an
identification procedure, Rule 3:11(b) should be revised along the following
lines: 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.
In stating a preference for video over audio recordings, we note that
various organizations and entities have recommended that approach. See Nat’l
Acad. of Scis., Identifying the Culprit: Assessing Eyewitness Identification
108-09 (2014) (“[V]ideotaping . . . is necessary to obtain and preserve a
permanent record of the conditions associated with the initial identification.”);
Int’l Ass’n of Chiefs of Police, Model Policy: Eyewitness Identification 2
(2010); Office of the Att’y Gen., Wis. Dep’t of Justice, Model Policy and
Procedure for Eyewitness Identification 14 (2010); Am. Bar Ass’n, Best
Practices for Promoting the Accuracy of Eyewitness Identification Procedures
3 (2004); see also Office of the Attorney General, Photo Array Eyewitness
Identification Procedure Worksheet 1 (Oct. 1, 2012) (Photo Array Worksheet)
24
(noting that video recordings can be “used to record/document the ID
procedure”), https://www.state.nj.us/lps/dcj/agguide/Eye-ID-Photoarray.pdf.
North Carolina and Illinois already require law enforcement officers to
make an electronic recording of identification procedures, if practical. See
N.C. Gen. Stat. 15A-284.52(b)(14) (requiring a video record or, if not
practical, an audio record of live identification procedures); 725 Ill. Comp.
Stat. Ann. 5/107A-2(f)(10) (requiring an audio or video recording of all lineup
procedures when practicable). When no electronic recording is made, both
states also require officers to document the reasons why. See N.C. Gen. Stat.
15A-284.52(b)(14) (“If neither a video nor audio record are practical, the
reasons shall be documented, and the lineup administrator shall make a written
record of the lineup.”); 725 Ill. Comp. Stat. Ann. 5/107A-2(h) (“If a video
record is not practical or the eyewitness refuses to allow a video record to be
made . . . the reasons or the refusal shall be documented . . . . If an audio
record is not practical, the reasons shall be documented . . . .”).
That sensible approach informs courts and defendants about a key part of
the eyewitness identification process and provides important context to
evaluate what occurred. Perhaps investigators accommodated a fearful witness
who would not speak if recorded electronically; maybe a recording device
25
malfunctioned; or, maybe an officer failed to follow mandatory procedures
without a sound reason.
We rely on our supervisory powers under Article VI, Section 2,
Paragraph 3 of the State Constitution to require a similar practice. See
Henderson, 208 N.J. at 254; Delgado, 188 N.J. at 63. 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.
We ask the Criminal Practice Committee to revise Rule 3:11 consistent
with the above principles.
V.
As noted earlier, Henderson outlined the legal standard for when courts
should hold pretrial hearings. The ruling also led to enhanced jury charges on
identification evidence to help juries evaluate evidence presented at trial. 208
N.J. at 298-99. The circumstances of this case require that we revisit both
subjects.
A.
To obtain a pretrial hearing, a defendant must present some evidence of
suggestiveness tied to a system variable which could lead to a mistaken
26
identification. Id. at 288-89. Under that standard, proof that an administrator
offered positive feedback to a witness after an identification would justify a
hearing. Because even a seemingly innocuous comment can falsely inflate a
witness’ confidence and contribute to a mistaken identification -- for example,
simply telling a witness that he or she did a “good job,” id. at 291 -- a hearing
would be warranted under those circumstances.
If a law enforcement officer does not electronically record the
identification procedure or prepare a contemporaneous verbatim account of the
exchange, the defendant may not learn about confirmatory feedback or other
suggestive behavior. Without that critical information, he or she may not be
able to get a hearing under the current standard -- as happened in this case.
Stated another way, defendants need a full record of the identification
procedure to gather possible evidence of suggestiveness. The failure to
provide that information should not deprive defendants of the opportunity to
probe about suggestive behavior that may have tainted an identification.
To address that situation, we modify the Henderson framework in this
way: 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
27
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.
This approach supplements the other remedies listed in Rule 3:11(d).
At the hearing, counsel will be free to explore the full range of variables
discussed in Henderson, as they can in the ordinary course. 208 N.J. at 288
93. Counsel can thus inquire about feedback and witness confidence ahead of
trial. If the identification evidence is then admitted, defense attorneys will not
be left in the uncomfortable position of having to decide whether to ask
speculative questions at trial about feedback, witness confidence, and other
variables for which counsel do not have answers.
We do not suggest that a hearing would be appropriate in all cases. If
the police present a record that is bereft of details and offers no reasonable
explanation why a better record was not prepared, a court in its discretion
could strike the identification evidence altogether without a hearing. See R.
3:11(d). What happened here, though, is different. As discussed further
below, law enforcement officials made a record that contained significant
details but also left out important information.
B.
We turn next to the appropriate jury charge for a violation of Rule 3:11.
Section (d) of the Rule addresses the remedies a court can craft when the
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record of an identification procedure “is lacking in important details.” To
reiterate, the Rule empowers the court, “in its sound discretion and consistent
with appropriate case law,” to “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.” Ibid.
The current model jury charge on eyewitness identification evidence
offers guidance on the last point. It includes the following language on pre
identification instructions:
Identification procedures should begin with instructions to the witness that the perpetrator may or may not be in the array and that the witness should not feel compelled to make an identification. The failure to give this instruction can increase the risk of misidentification. 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.
[Identification Charge at 8 (citing Henderson, 208 N.J. at 250) (emphasis added).]
See also Model Jury Charges (Criminal), “Statements of Defendant (When
Court Finds Police Inexcusably Failed to Electronically Record Statement)”
(R. 3:17) (Nov. 7, 2005) (“Among the factors you may consider in deciding
whether or not the defendant actually gave the alleged statement and if so,
whether any or all of the statement is credible, is the failure of law
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enforcement officials to make an electronic recording of the interrogation
conducted . . . .”).
Similar language can be used to instruct a jury about the failure to
preserve an identification procedure. 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.
Counsel should request such a charge when the facts warrant it. We ask
the Model Jury Charge Committee to amend the model charge accordingly.
VI.
In this case, the officers did not comply with Rule 3:11 or Delgado in
full. They did not prepare an electronic recording of Roberts’ out-of-court
identification of defendant. They also did not prepare a contemporaneous,
verbatim written account of the exchange between Roberts and the officer who
administered the photo array.
The police instead used three forms that documented important
information about the process. The forms, along with other parts of the record,
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reveal that the photo array itself was proper; a blind administrator conducted
the identification; she gave thorough and correct pre-identification instructions
to the witness; and he acknowledged that he understood them. One form
contains the witness’ words, in his own handwriting, about the person he
identified -- “[t]he man who ask[ed] me for my car keys during the robbery.”
The identity of the officer who administered the identification, and the location
where the procedure took place, are also documented. See R. 3:11(c)(1)-(3),
(6).
Reliance on the forms alone, though, did not create an adequate record in
other respects. There is no electronic recording or contemporaneous, verbatim
written account of the exchange during the identification procedure. See R.
3:11(b). As a result, the record does not reveal the full dialogue between
Detective Hannibal and Roberts. See R. 3:11(c)(2). We also cannot tell
whether the written statement of confidence reflected the witness’ own words.
See R. 3:11(c)(7). Nor is it clear whether the record contains the full extent of
the conversation between Detective Gonzales and Roberts when the officer
asked the witness to come to the police station to view the array. R.
3:11(c)(8).3
3 To help law enforcement officers accurately document the administration of a photo array, the Division of Criminal Justice issued a model worksheet that is designed to comply with Rule 3:11. See Photo Array Worksheet. For
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To be sure, Detective Hannibal, a “blind administrator” who did not
know which photo depicted the suspect, could not have confirmed whether
Roberts selected “the right” photo. But without a recording of the full
exchange, or an opportunity to explore it at a hearing, it was not possible to
know ahead of trial whether more subtle positive feedback was given, even if
well-meaning. Similar concerns potentially apply to the conversation between
Detective Gonzales and Roberts, for which the record does not contain a
detailed summary consistent with Rule 3:11(c)(8).
The trial court found that defendant had not presented any evidence of
suggestiveness tied to a system variable and therefore declined defendant’s
request for a pretrial hearing on Roberts’ identification. That ruling likely
carried over to the trial. Although the officers and Roberts responded to
example, question 12 of the worksheet asks, “Did you ask the witness whether he/she had previously spoken to anyone (law enforcement or civilian) about the identification?” If so, a detailed summary is to be provided. Question 14 asks, “Did you or anyone else present say or do anything during or after the procedure that would have suggested to the witness that he/she correctly identified the suspect? . . . (If yes, detail any actions/gestures/dialogue).” Question 17 asks, “[D]id you ask the witness during the procedure to make a statement concerning his/her level of confidence that the photo he/she selected depicts the perpetrator? . . . You must document the exact words and gestures used by the witness to describe his/her level of confidence.” And question 18 asks, “Did you repeat back to the witness the language quoted in the answer to #17 and confirm that is what he/she said about his/her level of confidence?”
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questions at trial about what happened before and during the photo array,
neither the prosecutor nor the public defender asked about confirmatory
feedback. The public defender likely did not know what the answers would
have been.
The State contends that any shortcomings were simply technical
omissions. For example, the State represents that the statement on the “Photo
Display Report” -- “confident in his choice” -- accurately summarized what
Roberts said when he made the identification. Yet defendant had no chance to
test that representation at a pretrial hearing. Similarly, the State argues there is
no evidence of suggestiveness in the record. Once again, defendant counters
that it is not possible to tell from an incomplete record whether Detectives
Gonzales or Hannibal made suggestive comments when they separately spoke
with Roberts.
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. A hearing would have
benefitted not only defendant but also the trial court, by enabling it to fulfill its
gatekeeping role.
As in Henderson and Chen, we remand this case to the trial court for
such a hearing. See Henderson, 208 N.J. at 300; State v. Chen, 208 N.J. 307,
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329 (2011). Defendant can explore all relevant variables, including
confirmatory feedback and witness confidence, at the hearing. When the
record is fully developed, the trial court will be in the best position to
determine (1) whether the identification evidence was admissible, and (2) if it
was, whether defendant was harmed by the lack of a pretrial hearing and the
absence of a jury charge to explain that Delgado was not followed in full.
At this time, without a more complete record, we do not find that the
absence of a supplemental charge was plain error. See R. 2:10-2. The trial
judge carefully relied on the model jury charge and provided extensive
instructions on how to assess the identification evidence. The charge included
cautionary language about witness confidence, quoted above.4
Defendant did not object to the charge. Although Rule 3:11(d) allows
for a supplemental charge to be fashioned, defendant did not ask for one. Any
error in the charge therefore must “have been clearly capable of producing an
unjust result” to warrant a new trial. R. 2:10-2.
Defendant will have an 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
4 By contrast, in State v. Cromedy, 158 N.J. 112 (1999), a case that turned on cross-racial identification, no model charge on the subject existed in New Jersey at the time of trial, and the jury received no guidance at all on the issue.
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be entitled to a new trial. 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 may face an
uphill climb. In such a case, he would be hard-pressed to show that a technical
violation of Rule 3:11(d) was “clearly capable of producing an unjust result.”
R. 2:10-2. We express no view on the outcome of the hearing.
We reject defendant’s argument that the identification should be barred
for all purposes at this time because the police failed to fully abide by Rule
3:11. That would amount to a per se rule that any error in recording an
identification, even a technical or insignificant one that presents a low risk of
misidentification, requires suppression of the evidence.
That is not the path this Court has followed for good reason. See
Henderson, 208 N.J. at 303. The case law in this sensitive area is designed to
guard against unreliable identification evidence in order to protect the accused.
We have not, however, created bright-line rules that call for the “suppression
of reliable evidence any time a law enforcement officer makes a mistake.”
Ibid. With that in mind, the remand hearing in this matter should probe what
happened during the identification process -- and end with evidence being
excluded if it is unreliable, and admitted otherwise.
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We recognize that, in the final analysis, “[t]he threshold for suppression
remains high.” Ibid. Unless a defendant can show “a very substantial
likelihood of irreparable misidentification,” id. at 289 (citing Manson, 432
U.S. at 116), it is for the jury to decide whether to credit a witness’ account,
with the benefit of the augmented model jury charge. In this case, once again,
the trial court will assess that standard in light of what is developed at the
remand hearing. At that point, the trial court will also be able to consider
whether the lack of a pretrial hearing and absence of a jury charge warrant a
new trial.
Outcome: For the reasons outlined above, we remand this case to the trial court for
further proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: