Previously, an alleged victim’s out-of-court identification of a defendant from a photo array was highly problematic. The primary issue was the extent to which the officer administering the array suggested to the victim which photo should be selected. This was frequently done by giving the victim positive feedback during the identification procedure, thereby increasing the likelihood that the defendant’s photo would ultimately be the one selected. To address this issue, New Jersey implemented several changes to the identification procedure including, without limitation, the requirement that the photo array be administered by an officer that has nothing to do with the case. This officer has no knowledge of the facts of the case, or the identity of the defendant, and is at least theoretically incapable of prompting the victim in any way while the latter reviews the array. However, and regardless of the procedural protections that have been implemented, problems with out-of-court identifications made from photo arrays persist. This is significant because of the weight that an out-of-court identification can have upon a jury’s perception of the evidence at trial. In the recent case of State v. Anthony, our Supreme Court again addressed and enhanced the procedures to be followed when a photo array is administered to a victim or a witness.
The issue in Anthony was the extent to which the officer administering the array must record the responses of the alleged victim or witness to the photos that make up the array. How are those reactions to be recorded, and how much detail is required? The facts of the case are not complicated. Two days after an attempted robbery, the victim went to the police station to review a photo array. The array was administered by an officer who was not involved in the case and did not know the defendant’s identity. The officer read a series of instructions to the victim, showed him the array, and recorded his responses on pre-printed forms that the department used to document identification procedures. On appeal, defense counsel argued that that this procedure was defective because the officer did not memorialize or record the dialog with the victim. As a result, it was not possible to determine if the officer behaved in a suggestive manner.
In reviewing this case, the Court recalled that prior decisions required that, as a condition to the admissibility of an out-of-court identification, the officers must make a written record detailing the procedure followed which must identify the place where the array was administered, the dialog between the witness and the officer, and the results of the procedure. The officer must record the witness’s statement of confidence in the witness’s own words. Continue reading