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