This recent appeal was decided by the N.J. Superior Court – App. Div. pertaining to witness identifications in a criminal trial. Summary by Mark Friedman.
State v. Jason R. Farley, unpublished opinion, App. Div. Docket No. A-6337-07T4 (November 20, 2009) – “[Defendant] contends that the trial court erred in admitting the victim’s out-of-court identifications of him because they were unduly suggestive, and that they tainted the victim’s in-court identification at trial….
We affirm … as to the admission of the victim’s out-of-court identification of defendant from a photograph, but remand for an evidentiary hearing as to the so-called ‘show-up’ identification…. There is sufficient credible evidence here to support the trial judge’s ruling to admit J.S.’s out-of-court photographic identification.
Officer Larrison did not make suggestive comments to J.S. before she viewed the photograph. Rather, he only asked her if she recognized the individual. The manner of the procedure was not impermissibly suggestive….
We have less confidence, however, about the ensuing ‘show-up’ identification by J.S. at defendant’s residence…. J.S. testified at the Wade hearing that Officer Larrison told her ‘the dogs had gone from my house and had led them to his house.’ That testimony raises significant concerns about suggestiveness.
There was no need for the police to share that canine-tracking information with the victim before she was driven to defendant’s house. Once at defendant’s house, J.S. saw only defendant and two uniformed police officers, illuminated by Officer Larrison’s spotlight.
This physical arrangement also has inherent suggestive aspects. Defendant was the sole civilian standing near two police officers, illuminated only by the light of a police car. Even though J.S. stated that she was not pressured by any police officer to make a positive identification, the dogtracking statement to her, coupled with the physical setting of the show-up and the surrounding scene, raises significant concerns about the reasons for her certitude….
Given the difficulty of this issue, the evolution of the law following this trial, and the poorly-developed record here concerning any deviations from the Guidelines, we deem it most prudent to remand the show-up issue to the trial court, to be reevaluated in light of Henderson and the potential application of a presumption of inadmissibility, or, alternatively, as Henderson also suggests, a possible ‘shifting of the burden of persuasion’ to the State ‘regarding the suggestiveness of the procedure.’ Henderson, supra, 397 N.J. Super. at 414, n.9.” (Alison Perrone, Designated Counsel)