New Jersey Supreme Court Justice Barry Albin

The New Jersey Supreme Court has issued an important decision refining and strengthening protections for persons facing criminal charges after being identified by a crime victim. In State v. Anthony, decided on March 13, 2019, the court, per Chief Justice Rabner, reversed the Appellate Division's affirmance of the denial of a defendant's request for a hearing on the admissibility of the identification. The only evidence of this defendant's guilt was his selection from a photo array by a victim of an attempted armed robbery. Decisions in this area are of great importance because, as noted in a partial dissent by Justice Albin, studies have shown that innocent persons were selected in 15 percent of eyewitness identifications, and 70 percentof the convictions of defendants exonerated by DNA evidence resulted from some type of misidentification.

We note that even before the Anthony decision, New Jersey already had in place rigorous requirements for admission of eyewitness identification evidence, which have evolved over time since State v. Earle, decided in 1972, requiring law enforcement to make a complete record of an identification procedure if feasible, and developing through State v. Henderson in 2011, requiring, among other things, that law enforcement record a witness's statement of confidence in his or her identification before the administering officer gives any feedback. Moreover, Criminal Rule 3:11 mandates detailed procedures, including a provision that an “out-of-court identification … shall not be admissible unless a record of the identification procedure is made,” preferably electronically or by a contemporaneous written record, and specifying that this record must include, among other things, the dialogue between the witness and the administering officer and the witness' statement of confidence in the identification.

The conviction here rested solely on Anthony's identification during a photo array conducted two days after the crime. The officer conducting the procedure knew nothing about the case and did not know which photograph, if any, was that of the perpetrator and, at the time, the victim said that he was “very confident” in his choice. Nonetheless, the court found several deficiencies: First, the Rule 3:11 identification procedure was not followed because it was not recorded despite there being recording devices available at police headquarters, and no contemporaneous verbatim written account of the words and gestures of the victim in identifying Anthony was made; it was impossible even to tell if the statement of confidence was in the victim's own words. Second, the trial court denied Anthony's motion for a pretrial hearing because the defendant was unable to present evidence of suggestive behavior, the pre-Anthony standard for granting such a hearing, even though without a recording it would have been difficult to provide such evidence. Third, the trial judge did not give a jury instruction concerning the fact that the police did not adhere to the Rule's recording requirement for the identification procedure (although the defense requested no such instruction).

Despite these deficiencies, the court refused to vacate Anthony's conviction. It did, however, remand the case for a hearing on the issue of suggestiveness of the procedure and admissibility of the identification, saying that because the defendant had been unable to test whether, during the procedure, “any subtle positive feedback” had been conveyed to the victim, there was an inadequate record. The court went on to add protections for future cases: (1) it held that a defendant no longer need show that suggestive behavior occurred during an identification procedure to obtain a pretrial hearing on that subject; rather, defendants will now be entitled to such a hearing if Rule 3:11 recording procedures are not followed and no electronic or contemporaneous verbatim written recording of the procedure is made; (2) it directed the Model Jury Charge Committee to amend the model charge to include an instruction that, in evaluating an identification, a jury can take into account the failure to properly record an identification procedure; and (3) it directed that Rule 3:11 be revised to state more clearly the order of preference for preserving an identification procedure, prioritizing first, recording it in an audio-visual format, but if not that, then video recording, then audio recording, and then a contemporaneous writing specifying certain particulars.

None of this was good enough for Justice Albin who, while agreeing with the new safeguards, would have, in addition, reversed Anthony's conviction and ordered a new trial. Emphasizing that the state's entire case depended on the reliability of one identification but that the police had not complied with Rule 3:11's “contemporaneous recordation” requirement, Justice Albin faulted the trial judge for not instructing the jury on his own initiative that violation of Rule 3:11 not only could be considered in assessing whether the state met its burden of proof, but also that jurors could draw an adverse inference from the failure to adhere to the Rule's recording requirement. As he explained, by failing to make a contemporaneous recordation, the police deprived the jury of significant evidence, specifically “whether the witness hesitated, had a hitch in his voice, or betrayed even the slightest doubt before he made a 'confident' identification.” In his opinion, holding a hearing on suggestibility 6½ years later, the majority's remedy, is unlikely to reliably recover what was lost by the failure to record the proceeding so many years before.

This is a case in which we appreciate the care, thoughtfulness and principles expressed in both the majority and dissenting opinions. While we think that the new trial advocated in Justice Albin's dissent is justified here, the majority's opinion also provides new and valuable protections and refines existing procedures in a meaningful manner that will improve our system of justice going forward.

Editorial Board members Lawrence Lustberg and Edwin Stern recused from this editorial.