Submitted by New Jersey Criminal Attorney, Jeffrey Hark
State vs. Wright Appellate Division February 29, 2016 (Approved for Publication)
The next issue in this case is the identification of the defendant by the victim at the scene. In 2011 the NJ Supreme Court handed down it surfing in State vs. Henderson. That decision outlined a new criminal procedure the police were to follow when identification of the defendant/arrestee is to take place by an alleged victim due to inherent unreliable memory issues outlined in numerous psychological and behavior science articles and theories concerning misidentification and improperly or over suggestive identifications lead to wrong identifications of defendants and tainted convictions. I have written an extensive blog on State vs. Henderson and it is published in my history.
In this case the court states as follows:
Although the Henderson Court noted the enhanced framework it established for admission of identification testimony “may provide a greater role [for appellate review] in certain cases,” id. at 295, we do not conclude the Court intended by that observation to endorse a standard that would allow us to set aside findings that have adequate support in the record, as these do. To be sure, the Court in Henderson continued to endorse its conclusion in State v. Herrera, 187 N.J. 493, 504 (2006), that showups are inherently suggestive. Henderson, supra, 208 N.J. at 261; see also Jones, supra, ___ N.J. at ___ (slip op. at 22). It did not, however, limit their admissibility, instead noting the special master’s finding that “‘the risk of misidentification is not heightened if a show up is conducted immediately after the witnessed event, ideally within two hours’ because ‘the benefits of a fresh memory seem to balance the risks of undue suggestion.‘” Henderson, supra, 208 N.J. at 259 (quoting Report of the Special Master at 29, Henderson, supra, 208 N.J. 208 (No. A-8-08)); see also Jones, supra, ___ N.J. at ___ (slip op. at 22) (noting “[o]ur law has permitted ‘on or near-the-scene identifications because they are likely to be accurate, taking place . . . before memory has faded and because they facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'”) (quoting Herrera, supra, 187 N.J. at 504).
We recognize, of course, that the inherent suggestibility of a showup was compounded in this instance by several system variables, most notably the witness hearing the radio transmissions and the detective’s failure to try to neutralize the harm by declining to confirm the information and warning the witness that the suspect may not be the perpetrator and that he should not feel compelled to make an identification, and instead telling him they had “the person who has the phone.” We also acknowledge that neither counsel nor the court was accustomed to working within the Henderson framework. The failure of the court to discuss the detective’s neglect to warn the witness that the suspect might not be the perpetrator and he should not feel compelled to make an identification is particularly concerning in light of the other system failures in this show up.
The central point of Henderson is the recognition that suggestive identification procedures can skew a witness’s report of his opportunity to view the crime, his degree of attention, and, most importantly perhaps, his level of certainty at the time of the identification. 208 N.J. at 286. Thus it is critical that the court identify particular police procedures — the system variables – and consider whether and to what extent any may have distorted the witness’s perception at the time of the identification and the witness’s certainty as to the identification thereafter. The court is to weigh those system variables along with any applicable estimator variables, some of which are also capable of altering memory and thus tainting an identification, in determining, based on the totality of the circumstances made misidentification unlikely. Mindful that we are reviewing a cold record and that the trial court’s factual findings are “entitled to very considerable weight,” Adams, supra, 194 N.J. at 203, we find no basis to disturb those findings and affirm the trial court’s denial of the motion to suppress the identification made by the victim.13 See Elders, supra, 192 N.J. at 244. Here, the trial court, after listening to the testimony and weighing the factors, concluded defendant had not demonstrated that very substantial likelihood and that it would be for the jury to decide whether the victim credibly identified defendant, guided by enhanced instructions on eyewitness testimony from the trial judge.
11 We acknowledge, however, that the court’s finding that the showup was impermissibly suggestive because the police communicated to the victim “that the police believed they had the robber” would certainly encompass the failure to provide the instruction required by the Attorney General Guidelines and Henderson circumstances, whether defendant has carried his burden to demonstrate “a very substantial likelihood of irreparable misidentification.” Id. at 289.
12 See Model Jury Charge (Criminal), “Identification: Out-of-Court Identification Only” (2012); State v. Lazo, 209 N.J. 9, 24 (2012). The court based its ruling on the victim’s ability to see the robber and provide a “highly accurate” description of him less than an hour before he was called on to make his identification. Although finding the police impermissibly signaled the victim in a variety of ways that “the police believed they had the robber,”.
13Underscoring the importance of jurors understanding the complicated issues underlying the reliability of eyewitness identification evidence the Court identified in Henderson, it directed the Criminal Practice Committee and the Committee on Model Criminal Jury Charges to develop an enhanced jury charge on eyewitness identification for the Court’s review prior to its implementation. Henderson, supra, 208 N.J. at 296-99. The resulting three new charges became effective September 2012.
IN other words, the trial court exercised its discretion and supported its decision on facts from the record that the identification soon after the arrest, even though the officer’s radio stated “the police believe they had the robber” broadcasted. The place to attack these issues is at the trial court level via a motion pursuant to Henderson.
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