What should I do if I am identified as a defendant in a criminal investigation?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Defendant argues that the identification procedure the police used was impermissibly suggestive because it involved multiple viewings of defendant’s photo, and the Critical Reach bulletin Vasquez saw in the police station contained a description of a crime that was similar to what Vasquez experienced. Defendant also argues that the trial judge’s findings concerning the Henderson estimator variables were not supported by the record. We disagree.

When reviewing an order denying a motion to bar an out-of- court identification, our standard of review “is no different from our review of a trial court’s findings in any non-jury case.” State v. Wright, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 10-11) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We accept those findings of the trial court that are “supported by sufficient credible evidence in the record.” State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge’s findings when they are “substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.” Johnson, supra, 42 N.J. at 161. However, “[a] trial court’s interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference.” Gamble, supra, 218 N.J. at 425.

In Henderson, the Supreme Court considered a wide array of scientific evidence collected and evaluated by a Special Master regarding eyewitness identifications, and concluded that while there is a “troubling lack of reliability” in such evidence, a court may admit it after considering a set of factors. Henderson, supra, 208 N.J. at 217-18. The Court divided the factors into “system variables[,]” which are within the State’s control, and “estimator variables[,]” which are not. Id. at 248-72.

System variables concern the manner in which the police conduct an identification procedure and include considerations such as the type of procedure used, how a photo array was constructed and administered, what pre-identification instructions were given to a witness, and whether suggestive feedback was given to a witness post-identification. Id. at 248-61. Estimator variables are factors related to the criminal incident, the witness, or the perpetrator. Id. at 261. They include stress; weapon focus; duration of the witness’ observation of the perpetrator; distance and lighting; the witness’ characteristics that could impact an identification’s accuracy; the perpetrator’s appearance, including whether a mask or disguise was employed; racial bias; and the speed of an identification. Id. at 261-272.

Under Henderson, to obtain a pretrial hearing on the admissibility of eyewitness identification evidence, “a defendant has the initial burden of showing some evidence of suggestiveness” in the identification proceeding “that could lead to a mistaken identification.” Id. at 288. That evidence must generally be tied to a system, rather than an estimator, variable. Id. at 288-89.

If a hearing is granted, “the State must then offer proof to show that the proffered eyewitness identification is reliable[,]” accounting for both types of variables. Id. at 289. In this second analytical step, the State has the burden of producing evidence consistent with N.J.R.E. 101(b)(2). State v. Henderson, 433 N.J. Super. 94, 107 (App. Div. 2013), certif. denied, 217 N.J. 590 (2014). If the State submits “evidence on the issue that is germane to the inquiry with sufficient clarity so that the [defendant] has a full and fair opportunity to respond[,]” the burden shifts back to the defendant to show “‘a very substantial likelihood of irreparable misidentification.’” Ibid. (quoting Henderson, supra, 208 N.J. at 289).

“[I]f after weighing the evidence presented a court finds from the totality of the circumstances that [the] defendant has” carried his or her burden, the eyewitness identification evidence should be suppressed. Henderson, supra, 208 N.J. at 289. If that burden is not met, however, the evidence should be admitted, and “the court should provide appropriate, tailored jury instructions” explaining how the evidence is to be considered. Ibid.