State v. Anthony and Out-Of-Court Identification Procedures

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.

The Court went on to discuss enhancements to the rules and procedures governing the administration of photo arrays, and the recording of victim responses.  It began by noting that recording devices are easily available, and are preferable for memorializing identification procedures.  In this light, the Court suggested the following changes to the applicable rules in order of preference.  Officers should record all identification procedures electronically in video or audio format.  An audio-visual record is preferred.  If an electronic recording is not possible, officers should contemporaneously record the identification procedure in writing, and should include a verbatim account of all exchanges between an officer and a witness.  If a contemporaneous verbatim written account cannot be made, the officer should prepare a detailed summary of the identification as soon as practicable.  When an electronic recording cannot be made, the officers must document the reasons for not having done so.

Finally, prior decisions allowed for a hearing if there was proof that an officer offered positive feedback to a witness.  Now, defense counsel will be entitled to a hearing on the admissibility of the identification if officers fail to follow applicable procedures, and no electronic or contemporaneous verbatim written record of the identification procedure was made or prepared.  Thus, the Court recognized that defense counsel needs a full record of the identification procedure to gather evidence of suggestiveness, but should not be deprived of the opportunity to probe the procedure by which the array was administered for suggestive behavior in the event a full record was not created.

The officers in the matter at bar failed to comply with applicable procedures, since there was no electronic recording or contemporaneous verbatim written record.  The forms used to document the process did not create a sufficient record against which to assess suggestiveness.  Thus, a hearing was required to evaluate the reliability of the identification even though the defendant could not present evidence of suggestiveness.

Regardless of the foregoing, the Court noted that the threshold for suppression of the identification remains high.

James S. Friedman, Esq., is a criminal defense attorney centrally based in New Brunswick, New Jersey.  Mr. Friedman defends individuals with charges in the New Jersey Superior Court, all New Jersey municipal courts, the New York State criminal courts in Brooklyn and Manhattan, and the federal district courts throughout New Jersey and New York City.  Call us if you or someone you know has a criminal charges in one of these courts.


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