07-31-08 A-4251-06T5
The admissibility of the identification evidence presented at trial is the most significant issue raised on this appeal from a conviction for attempted murder. The victim initially identified the defendant under highly suggestive circumstances that posed a significant risk of compromising the initial and subsequent identifications. Law enforcement officers had no role in creating, encouraging or permitting the highly suggestive procedures utilized at the time of the initial identification.
We conclude that when there is evidence that the highly suggestive words or conduct of a private citizen pose a significant risk of misidentification, a preliminary hearing on admissibility of the identification is required. The holding is based on the court's responsibility to ensure that evidence of pre-trial identifications meet the standard for admission of such evidence, N.J.R.E. 803, and the Court's authority to exclude evidence of subsequent identifications that are of such questionable reliability that the probative value is substantially outweighed by the risk of prejudice and misleading the jury, N.J.R.E. 403. See State v. Michaels, 136 N.J. 299, 316 (1994); State v. Williams, 39 N.J. 471, 489 (1963).
