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.

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