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New Jersey Supreme Court Announces Extension of Eyewitness Identification Safeguards of Henderson to Pretrial Preparation Sessions and Provides Framework for Showing Photos During Pretrial Phase

by Douglas Ankney

The Supreme Court of New Jersey unanimously extended the investigative eyewitness identification safeguards of State v. Henderson, 27 A.3d 872 (N.J. 2011) (articulating a series of variables that can affect the reliability of eyewitness identification evidence and setting forth procedural safeguards), to pretrial preparation sessions and provided a framework for showing photos during pretrial preparation.

On February 16, 2017, Brandon Washington was forcibly removed from a Veterans of Foreign Wars (“VFW”) lodge during a “Ladies Night” event. Seconds later, the front door opened, someone entered the doorway, pointed a gun into the hall, and fired three or four times. The shooter then fled. A bullet hit William Matthews near his ear, and Mark Peterson was shot in the arm. Witnesses at the scene shared a cellphone photo from Facebook of Washington that had been provided by bartender Victoria Hendrix.

During the initial investigation, many of the witnesses selected Washington’s picture from a photo array. Washington was indicted on two counts of attempted murder. His trial occurred almost two years after the incident on February 7, 2019. The contested issue was the identity of the shooter. During trial, the defense learned via Matthews’ testimony that, during trial preparation sessions shortly before trial, an assistant prosecutor had shown Matthews and the other witnesses the same photo array they had seen earlier or the single photo of Washington from Facebook. The trial court overruled the defense’s objections to the admissibility of the witnesses’ identification testimony. The jury convicted Washington of the lesser-included offense of attempted passion provocation manslaughter, and he was sentenced to two consecutive 10-year prison terms.

Washington timely appealed, arguing seven issues, including the “identification issues at trial.” The Appellate Division affirmed his conviction, and the New Jersey Supreme Court granted Washington’s petition for certification “limited to the issues concerning the prosecutor showing witnesses photos of the defendant during pretrial preparations.”

The Court observed “[s]uggestive identification ‘procedures may so irreparably taint … out-of-court and in-court identifications that defendant is denied due process.’” Henderson. “It is the likelihood of misidentification which violates a defendant’s right to due process….” Neil v. Biggers, 409 U.S. 188 (1972).

The extensive scientific evidence presented in Henderson led that Court to declare that “memory is malleable” and the “possibility of mistaken identification is real,” and it noted that “eyewitness misidentification is the leading cause of wrongful convictions across the country.” Henderson.

“Viewing a suspect more than once during an investigation can affect the reliability of the later identification.” Id. Multiple viewings of mugshots “can create a risk of ‘mugshot exposure’ and ‘mugshot commitment.’” Id. The Special Master in Henderson concluded, “successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.” Id. Mugshot exposure occurs “when a witness initially views a set of photos and makes no identification, but then selects someone—who had been depicted in the earlier photos—at a later identification procedure.” Id. “[M]ugshot commitment takes place when a witness identifies a single photo that is later included in a lineup.” Id.

“Showups are essentially single-person lineups” wherein “a single suspect is presented to a witness to make an identification.” Henderson. Showups are “highly suggestive ‘because the victim can only choose from one person.’” State v. Watson, 298 A.3d 1049 (N.J. 2023). While showups “can serve a valuable purpose if conducted within hours of a crime,” studies underscore the “heightened risk of misidentification” when the showup is “conducted more than two hours after the event.” Id.

“Confirmatory feedback occurs when law enforcement officials ‘signal to eyewitnesses that they correctly identified the suspect.’” Henderson. “According to social science research, confirmatory feedback ‘can reduce doubt,’ ‘engender a false sense of confidence,’ and ‘falsely enhance a witness’s recollection of’ their ability to view an event.” Id. The feedback may come from law enforcement officials, fellow witnesses, and other private actors. Id. Because the person administering the identification procedure can unintentionally provide confirmatory feedback, ideally the administrator should “not know who the suspect is” in order to avoid influencing the witness. Id.

Finally, the Henderson Court addressed “memory decay.” That is, “the more time that passes, the greater the possibility that a witness’s memory of the perpetrator will weaken.”

In the present case, the Court noted that Henderson did not expressly address the issue of witness identification during pretrial preparations. Nevertheless, although Henderson involved suggestive identification procedures that occurred two weeks after the commission of the offense, the Court determined that nothing in Henderson or the record in the current case indicates that the principles discussed in Henderson apply to only the investigative phase of a criminal case. Thus, the Court announced: “We therefore see no reason to treat impermissibly suggestive identification events during pretrial preparation differently than other identification procedures.”

The Court then provided the following practical framework: “First, as a general, overarching rule, witnesses who have already made an identification should not be shown any photos of the defendant during pretrial preparation.” (The Court explained that showing photo arrays that include the suspect, single photos of the suspect, and new photos of the suspect to these witnesses raises concerns of mugshot exposure, mugshot commitment, confirmation bias, and delayed showup.)

“Second, when a witness has not previously been asked to make an identification, or has tried before but could not identify a suspect, investigators who are not familiar with the suspect’s appearance can conduct an identification procedure at the time of trial preparation. The procedure should be done in a manner consistent with the Court’s guidance in Henderson. It should also be recorded pursuant to Rule 3:11 and disclosed to defense counsel under Rule 3:13-3(b)(1)(J). Counsel may then request a [United States v. Wade, 388 U.S. 218 (1967)] hearing. Defendants who can ‘show some evidence of suggestiveness that could lead to a mistaken identification’ will be entitled to a pretrial hearing.” Henderson.

The Court further instructed “[w]e do not rule out the possibility that there may be compelling reasons in certain cases to show witnesses photos they previously selected…. Although we caution against it, if prosecutors or investigators show witnesses the same or new photos of the defendant during pretrial preparation, under belief there is good reason to do so, they must create a contemporaneous, written record of what occurred and disclose it to the defense.” See State v. Anthony, 204 A.3d 229 (N.J. 2019).

Applying that framework to the present case, the Court stated that the witnesses had identified Washington from a photo array or a single photo during the initial investigation and were then shown either the same photo array or a different photo of Washington during pretrial preparation shortly before trial. This information was not disclosed to the defense before trial. But because it was not clear from the record who saw which photos and when, the Court concluded that the trial court needed to conduct a Wade hearing, and if the results of the hearing indicate a new trial is warranted, the trial court must vacate the conviction and set a new trial date. See Henderson.

Accordingly, the Court remanded to the trial court for further proceedings consistent with its opinion. See: State v. Washington, 307 A.3d 1 (N.J. 2024).  


Editor’s note: Anyone interested in the issue of eyewitness misidentification is encouraged to read the full opinion of the Court as well as State v. Henderson, 27 A.3d 872 (N.J. 2011), which contains extensive discussions of the scientific evidence regarding human memory and eyewitness misidentification.

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