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New Jersey Witness Identification Issues

Find help for eyewitness misidentification issues with our New Jersey witness misidentification attorney

Challenging Witness Identification Issues

Witness identification is historically a key component to criminal prosecution. However, consistent research has shown that witness identification is wrought with scientific doubts of eyewitness accuracy. Inaccuracy can be based on “system and estimator variables.” In some cases, police suggestiveness and deviation from the Attorney General Guidelines can also cause misidentification.

The New Jersey Supreme Court recently decided the landmark case of State v. Henderson, adding more protection to criminal defendants by expanding the analysis of witness identification in criminal cases. If you believe eyewitness identification may be an issue in your case, give my office a call so we can discuss whether a “Wade Motion” is appropriate in your case.

I. Background on Witness Misidentification

A Wade Hearing is a preliminary inquiry to determine the admissibility of an identification. U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). To secure this Hearing a defendant must make a threshold showing of an impermissibly suggestive identification , or a violation of his Sixth Amendment right to counsel. State v. Ortiz, 203 N.J.Super. 518, 497 A.2d 552 (App.Div.1985).

In U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967), the Defendant was convicted before the United States District Court for the Eastern District of Texas of bank robbery, and he appealed. The Court of Appeals, 358 F.2d 557, reversed the conviction and ordered a new trial, and certiorari was granted. The United States Supreme Court held that post-indictment lineup was critical stage of prosecution at which defendant was as much entitled to aid of counsel as at trial itself, and thus both defendant and his counsel should have been notified of impending lineup, and counsel’s presence should have been requisite to conduct of lineup, in absence of intelligent waiver. Id.

II. Who initiates the Wade hearing?

Unless there is an objection to the admissibility of proof of an identification, there is no error in admitting such proof without first holding a hearing out of the presence of the jury to determine its admissibility. To obtain such a hearing, there must first be an objection to the admission of such proof before it is offered in evidence before a jury. Second, defense counsel must satisfy a threshold requirement by proffering “some evidence” of impermissible suggestiveness or a Sixth Amendment violation.

III. Who has burden of producing evidence and burden of proof?

There appears to be no law as to whether it is the State or the defense which has the burden of producing evidence when proof of the fact of an out-of-court identification is challenged. However, a practice has developed similar to that followed at a hearing on a motion to suppress evidence seized without a search warrant. That practice is that at the Wade hearing, the State presents its proofs first, and the defense then has the opportunity to present testimony.

When an out-of-court identification is challenged on Fourteenth Amendment grounds, the defendant ordinarily bears the burden of demonstrating by a preponderance of the evidence that the pretrial identification was so suggestive as to result in a substantial likelihood of misidentification. There is no case law dealing with the issue of whether it is the State or defendant that has the burden of persuasion when an out-of-court identification is challenged on Sixth Amendment grounds.

Where a judge rules that there was a Sixth Amendment violation, then an in-court identification must also be excluded, unless the State proves by “clear and convincing evidence” that the proposed in-court identification is not “tainted” by the out-of-court identification.

IV. Who testifies at Wade hearing?

Where an out-of-court identification is challenged on Fourteenth Amendment grounds, the eyewitnesses should be called as a witness by the State at the Wade hearing. The eyewitnesses must testify because under the Neil v. Biggers test for determining whether there was a due process violation the following factors are relevant in determining whether the identification was reliable:

  1. The opportunity of the eyewitnesses to view the criminal at the time of the crime,
  2. The eyewitnesses’ degree of attention,
  3. The accuracy of the eyewitnesses’ prior description of the criminal,
  4. The level of certainty demonstrated by the eyewitnesses at the confrontation, and
  5. The length of time between the time of the crime and the confrontation.

The New Jersey Supreme Court recently decided the landmark case of State v. Henderson, adding many new factors to this analysis, including:

  • Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
  • Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
  • Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect. Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
  • Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
  • Whether the witness was under a high level of stress.
  • Whether a weapon was used, especially if the crime was of short duration.
  • How much time the witness had to observe the event.
  • How far the witness was from the perpetrator and what the lighting conditions were.
  • Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
  • Whether the perpetrator possessed characteristics that would make it harder to make an identification. Was he or she wearing a disguise? Did the suspect have different facial features at the time of the identification?
  • The length of time between the crime and identification.
  • Whether the case involved cross-racial identification.

The police officer who conducted the pretrial confrontation should be called by the State to testify regarding the procedures employed at the pretrial confrontation, and the level of certainty by the eyewitnesses in their identification of the defendant at that pretrial confrontation.

The defendant may also wish to call witnesses at the Wade hearing in order to demonstrate the unreliability of the identification. For example, the defendant may wish to call police officers to testify:

  1. That the eyewitnesses gave a description of the perpetrator prior to the confrontation which does not correspond to the defendant’s actual description, or
  2. That the eyewitness identified someone other than the defendant as the perpetrator prior to the pretrial confrontation in which she identified the defendant, or
  3. That the eyewitnesses failed to identify the defendant on an occasion prior to the challenged pretrial confrontation, or
  4. That the pretrial confrontation was suggestive.

V. Format of the Wade hearing.

At the Wade hearing, all evidence should be taken from both the State and the defense which is relevant to the alleged illegality of the particular out-of-court identification. In addition, where the alleged illegality is a Sixth Amendment violation and the defendant objects to an in-court identification by the eyewitnesses, then all evidence on the issue of whether an in-court identification should be adduced.

Where the alleged illegality is a Fourteenth Amendment due process violation, then the evidence adduced on the Fourteenth Amendment issue is identical to the evidence relevant to the issue of “taint” where the Neil v. Biggers (see above) test is used by the judge to determine whether there was a Fourteenth Amendment violation. Where there was more than one pretrial confrontation, there should be a separate Wade hearing as to each such confrontation.

Get Legal Guidance for Eyewitness Identification Issues in New Jersey

I have offices located across the state in Freehold, Mt. Laurel, Princeton, Jersey City, Red Bank, and Woodbridge, NJ to best serve you. Please contact me to talk about any eyewitness identification issues you may be facing for your criminal charges.






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