Identification Of a Defendant by Photo Array Cannot Occur Before Trial Unless It Is Disclosed and a Hearing on The Issue Takes Place

State v. Brandon M. Washington

Appellate Docket No.: A-29-22

Decided January 8, 2024

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent opinion, the Supreme Court of New Jersey reversed a conviction of a defendant where witnesses were shown a photo array prior to trial to identify the defendant as a shooting suspect.

In State v. Washington, Defendant Brandon Washington was forcibly removed from a “Ladies Night” event after an argument with a security guard. Seconds later, someone fired shots into the event venue, striking two people. After an investigation, defendant was charged with tw0o counts of attempted murder.

During the initial investigation, several witnesses selected defendant’s picture from a photo array. Later, during trial preparation, an assistant prosecutor showed witnesses the array they had seen before or a single photo of defendant from Facebook. The witnesses later identified defendant in court. One did so for the first time at trial.

Through questioning at trial, it emerged that the witnesses had been shown photographs of defendant. Defense counsel requested a Rule 104 hearing to develop a record as to what was shown to witnesses during trial preparation. The court held a hearing only as to a single witness whose name had not been included on the State’s witness list, and the court declined to expand that hearing beyond whether the witness should be permitted to testify.

The jury convicted defendant of a lesser included offense — attempted passion provocation manslaughter — on both counts. Defendant appealed, and the Appellate Division affirmed his conviction. The Court granted defendant’s petition for certification “limited to the issues concerning the prosecutor showing witnesses photos of defendant during pretrial preparations.”

The Supreme Court found that the same protections during an investigation against false identification as trial preparation.  Specifically, witnesses who have already made an identification should not be shown any photos of the defendant during trial preparation. Second, when a witness has not previously been asked to make an identification, or has tried before but could not identify a suspect, investigators who are not familiar with the suspect’s appearance can conduct an identification procedure at the time of trial preparation.

It should also be noted that the Attorney General notes that photographs should not be shown for trial preparation unless there is good reason to do so.

This case is vital for any matter with an identification issue.  Here, defendant was observed by a crowd and photographs were later shown both during the investigation and then again during trial preparation.  The fear of allowing this is that people misidentify mugshots quite often, especially given a wide array of photographs.  To combat this issue, the Court here is limiting when and how photographs can be used for identification.

If you have been charged with any charge, first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any south Jersey county in New Jersey including Atlantic County, Burlington County, Camden County, Cape May County, Cumberland County, Gloucester County, Mercer County, Middlesex County, Monmouth County, Ocean County, and Salem County and any town including Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.