State v. Ibnmauric Anthony (A-11-17) (079344) Argued October 22, 2018 -- Decided March 13, 2019
RABNER, C.J., writing for the Court.
This appeal raises issues about the process law enforcement officers must follow when they ask eyewitnesses to try to identify a suspect. Specifically, this appeal poses questions about the precise meaning and scope of Rule 3:11 as well as the proper remedies when State v. Delgado, 188 N.J. 48, 63 (2006), and the Rule are violated.
Today’s ruling addresses the following points: (1) it clarifies Rule 3:11 and emphasizes that law enforcement officers are to record identification procedures electronically, preferably by video, if feasible; (2) it requires officers to document their reasons for not recording an identification procedure electronically or preparing a contemporaneous, verbatim written account of the process; (3) it modifies State v. Henderson, 208 N.J. 208 (2011), and holds that defendants are entitled to a pretrial hearingon the admissibility of a witness’ identification when no electronic or contemporaneous,verbatim written recording of the identification procedure is prepared, even without evidence of suggestiveness on the part of law enforcement; and (4) it proposes a change to the model jury charge for use when Delgado and Rule 3:11 are not followed.
Eugene Roberts pulled into the driveway of his home in Newark. As Roberts got outof his car, three men approached him. One of the men pointed a revolver at Roberts’ torsoand demanded money. Another man, later identified as defendant Ibnmauric Anthony, askedfor Roberts’ car keys. The man searched the car as Roberts watched and then tossed the keys to the ground before all three walked away. Roberts called the police and gave a statement.
Two days later, Roberts returned to the police station to look at a photo array. Detective Karima Hannibal administered the array. She was not involved in the case and didnot know the suspect’s identity. Detective Hannibal read a series of instructions to Roberts,showed him the array, and recorded his response. She used three pre-printed Newark Police Department forms to document the identification procedure.
A grand jury indicted defendant, who moved to suppress the out-of-court identification and asked for a pretrial hearing under United States v. Wade, 388 U.S. 218 (1967), and Henderson. Defendant argued that it was improper for law enforcement officers not to memorialize or record the dialogue during the viewing of the photo array because there was no way to know if any impermissibly suggestive behavior took place.
RABNER, C.J., writing for the Court.
This appeal raises issues about the process law enforcement officers must follow when they ask eyewitnesses to try to identify a suspect. Specifically, this appeal poses questions about the precise meaning and scope of Rule 3:11 as well as the proper remedies when State v. Delgado, 188 N.J. 48, 63 (2006), and the Rule are violated.
Today’s ruling addresses the following points: (1) it clarifies Rule 3:11 and emphasizes that law enforcement officers are to record identification procedures electronically, preferably by video, if feasible; (2) it requires officers to document their reasons for not recording an identification procedure electronically or preparing a contemporaneous, verbatim written account of the process; (3) it modifies State v. Henderson, 208 N.J. 208 (2011), and holds that defendants are entitled to a pretrial hearingon the admissibility of a witness’ identification when no electronic or contemporaneous,verbatim written recording of the identification procedure is prepared, even without evidence of suggestiveness on the part of law enforcement; and (4) it proposes a change to the model jury charge for use when Delgado and Rule 3:11 are not followed.
Eugene Roberts pulled into the driveway of his home in Newark. As Roberts got outof his car, three men approached him. One of the men pointed a revolver at Roberts’ torsoand demanded money. Another man, later identified as defendant Ibnmauric Anthony, askedfor Roberts’ car keys. The man searched the car as Roberts watched and then tossed the keys to the ground before all three walked away. Roberts called the police and gave a statement.
Two days later, Roberts returned to the police station to look at a photo array. Detective Karima Hannibal administered the array. She was not involved in the case and didnot know the suspect’s identity. Detective Hannibal read a series of instructions to Roberts,showed him the array, and recorded his response. She used three pre-printed Newark Police Department forms to document the identification procedure.
A grand jury indicted defendant, who moved to suppress the out-of-court identification and asked for a pretrial hearing under United States v. Wade, 388 U.S. 218 (1967), and Henderson. Defendant argued that it was improper for law enforcement officers not to memorialize or record the dialogue during the viewing of the photo array because there was no way to know if any impermissibly suggestive behavior took place.
1
The trial court denied defendant’s motion and request for a pretrial hearing. Trial began, and the case rested on Roberts’ identification. To instruct the jury, the trial court usedthe model jury charge for eyewitness identification, Model Jury Charges (Criminal),“Identification: In-Court and Out-of-Court Identifications” (rev. July 19, 2012)(Identification Charge). Defendant did not object or ask for a supplemental charge about the administration or recording of the photo array. The jury convicted defendant on all counts.
The Appellate Division affirmed defendant’s conviction. The panel found that “the failure to record Roberts’ actual words” of confidence was not “a sufficient violation (if aviolation at all) of Delgado and Rule 3:11 to warrant exclusion of the evidence.” TheAppellate Division also rejected defendant’s belated challenge that it was plain error for the court not to instruct the jury about that circumstance.
The Court granted certification “limited to the issue of the State’s failure to comply with the requirements of” Delgado. 231 N.J. 110 (2017).
HELD: Because Rule 3:11 was not fully followed, and because the record does not reveal whether the shortcomings were technical or substantive, the Court remands for a full hearing consistent with Wade and Henderson. Based on the evidence developed at the hearing, the trial court will be in the best position to determine whether a new trial is warranted.
1. In Henderson, the Court revised the legal framework for the admission of eyewitness identification evidence and held that when defendants can show some evidence of suggestiveness tied to a system variable, they are entitled to explore all relevant system and estimator variables at a pretrial hearing to try to challenge the admissibility of the identification. 208 N.J. at 288-93. Confirmatory feedback is one of a number of variables that can affect memory. Positive feedback can distort memory and “create a false sense of confidence.” Id. at 255. That is a significant concern because of how much weight jurors place on the level of confidence a witness displays at trial. Id. at 274. (pp. 14-16)
2. In Delgado, the Court required “that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, thedialogue between the witness and the interlocutor, and the results.” 188 N.J. at 63. Delgado encouraged but did not mandate the use of tape recorders to preserve identification procedures. Ibid. In addition, the Court asked the Criminal Practice Committee to prepare a rule to incorporate the above principles. Id. at 64. In Henderson, the Court reaffirmed Delgado. 208 N.J. at 252. To guard against confirmatory feedback, the Court required lawenforcement to record a witness’ statement of confidence “in the witness’ own words before any possible feedback.” Id. at 254. Henderson added that “if an eyewitness’ confidence wasnot properly recorded soon after an identification procedure, and evidence revealed that thewitness received confirmatory feedback,” trial judges could bar any testimony at trial about the witness’ level of confidence. Id. at 298. The Court also asked that the model charge on eyewitness identification be revised. Ibid. The Court adopted an enhanced set of instructions in 2012. See Identification Charge. (pp. 16-19)
The Appellate Division affirmed defendant’s conviction. The panel found that “the failure to record Roberts’ actual words” of confidence was not “a sufficient violation (if aviolation at all) of Delgado and Rule 3:11 to warrant exclusion of the evidence.” TheAppellate Division also rejected defendant’s belated challenge that it was plain error for the court not to instruct the jury about that circumstance.
The Court granted certification “limited to the issue of the State’s failure to comply with the requirements of” Delgado. 231 N.J. 110 (2017).
HELD: Because Rule 3:11 was not fully followed, and because the record does not reveal whether the shortcomings were technical or substantive, the Court remands for a full hearing consistent with Wade and Henderson. Based on the evidence developed at the hearing, the trial court will be in the best position to determine whether a new trial is warranted.
1. In Henderson, the Court revised the legal framework for the admission of eyewitness identification evidence and held that when defendants can show some evidence of suggestiveness tied to a system variable, they are entitled to explore all relevant system and estimator variables at a pretrial hearing to try to challenge the admissibility of the identification. 208 N.J. at 288-93. Confirmatory feedback is one of a number of variables that can affect memory. Positive feedback can distort memory and “create a false sense of confidence.” Id. at 255. That is a significant concern because of how much weight jurors place on the level of confidence a witness displays at trial. Id. at 274. (pp. 14-16)
2. In Delgado, the Court required “that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, thedialogue between the witness and the interlocutor, and the results.” 188 N.J. at 63. Delgado encouraged but did not mandate the use of tape recorders to preserve identification procedures. Ibid. In addition, the Court asked the Criminal Practice Committee to prepare a rule to incorporate the above principles. Id. at 64. In Henderson, the Court reaffirmed Delgado. 208 N.J. at 252. To guard against confirmatory feedback, the Court required lawenforcement to record a witness’ statement of confidence “in the witness’ own words before any possible feedback.” Id. at 254. Henderson added that “if an eyewitness’ confidence wasnot properly recorded soon after an identification procedure, and evidence revealed that thewitness received confirmatory feedback,” trial judges could bar any testimony at trial about the witness’ level of confidence. Id. at 298. The Court also asked that the model charge on eyewitness identification be revised. Ibid. The Court adopted an enhanced set of instructions in 2012. See Identification Charge. (pp. 16-19)
2
3. In response to Delgado and Henderson, the Criminal Practice Committee in 2012 proposed a court rule on recording requirements for identification procedures, which the Court adopted later that year. The Court reviews Rule 3:11 in its current form. (pp. 19-21)
4. With the proliferation of recording devices in recent years, the Rule’s aim is easier toachieve today than in the past. Police departments of all sizes now have access to devices that can electronically record and preserve identification procedures. And departments already use recording equipment to preserve identification procedures consistent with the requirements of Rule 3:17(a). Electronic recordings are preferable for identification procedures as well. To more clearly state the order of preference for preserving an identification procedure, Rule 3:11(b) should be revised along the following lines: Officers are to record all identification procedures electronically in video or audio format. Preferably, an audio-visual record should be created. If it is not feasible to make an electronic recording, officers are to contemporaneously record the identification procedure in writing and include a verbatim account of all exchanges between an officer and a witness. If a contemporaneous, verbatim written account cannot be made, officers are to prepare a detailed summary of the identification as soon as practicable. The Court relies on its supervisory powers to require, further, that when it is not feasible to make an electronic recording of an identification procedure, law enforcement officers must document the reasons for not having done so. The same requirement applies when officers cannot prepare a contemporaneous, verbatim written account. The Court asks the Criminal Practice Committee to revise Rule 3:11 consistent with the above principles. (pp. 21-25)
5. Henderson outlined the legal standard for when courts should hold pretrial hearings. Under that standard, proof that an administrator offered positive feedback to a witness after an identification would justify a hearing. Defendants need a full record of the identification procedure to gather possible evidence of suggestiveness. The failure to provide that information should not deprive defendants of the opportunity to probe about suggestive behavior that may have tainted an identification. To address that situation, the Court modifies the Henderson framework in this way: a defendant will be entitled to a pretrial hearing on the admissibility of identification evidence if Delgado and Rule 3:11 are not followed and no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared. In such cases, defendants will not need to offer proof of suggestive behavior tied to a system variable to get a pretrial hearing. This approach supplements the other remedies listed in Rule 3:11(d). At the hearing, counsel will be free to explore the full range of variables discussed in Henderson, as they can in the ordinary course. 208 N.J. at 288-93. The Court does not suggest that a hearing would be appropriate in all cases and explains when a hearing might not be needed. (pp. 25-27)
6. The Identification Charge includes the following language on pre-identification instructions: “If you find that the police [did/did not] give this instruction to the witness, you may take this factor into account when evaluating the identification evidence.” Similar language can be used to instruct a jury about the failure to preserve an identification procedure. The Court outlines the points that such a charge should include and notes that
4. With the proliferation of recording devices in recent years, the Rule’s aim is easier toachieve today than in the past. Police departments of all sizes now have access to devices that can electronically record and preserve identification procedures. And departments already use recording equipment to preserve identification procedures consistent with the requirements of Rule 3:17(a). Electronic recordings are preferable for identification procedures as well. To more clearly state the order of preference for preserving an identification procedure, Rule 3:11(b) should be revised along the following lines: Officers are to record all identification procedures electronically in video or audio format. Preferably, an audio-visual record should be created. If it is not feasible to make an electronic recording, officers are to contemporaneously record the identification procedure in writing and include a verbatim account of all exchanges between an officer and a witness. If a contemporaneous, verbatim written account cannot be made, officers are to prepare a detailed summary of the identification as soon as practicable. The Court relies on its supervisory powers to require, further, that when it is not feasible to make an electronic recording of an identification procedure, law enforcement officers must document the reasons for not having done so. The same requirement applies when officers cannot prepare a contemporaneous, verbatim written account. The Court asks the Criminal Practice Committee to revise Rule 3:11 consistent with the above principles. (pp. 21-25)
5. Henderson outlined the legal standard for when courts should hold pretrial hearings. Under that standard, proof that an administrator offered positive feedback to a witness after an identification would justify a hearing. Defendants need a full record of the identification procedure to gather possible evidence of suggestiveness. The failure to provide that information should not deprive defendants of the opportunity to probe about suggestive behavior that may have tainted an identification. To address that situation, the Court modifies the Henderson framework in this way: a defendant will be entitled to a pretrial hearing on the admissibility of identification evidence if Delgado and Rule 3:11 are not followed and no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared. In such cases, defendants will not need to offer proof of suggestive behavior tied to a system variable to get a pretrial hearing. This approach supplements the other remedies listed in Rule 3:11(d). At the hearing, counsel will be free to explore the full range of variables discussed in Henderson, as they can in the ordinary course. 208 N.J. at 288-93. The Court does not suggest that a hearing would be appropriate in all cases and explains when a hearing might not be needed. (pp. 25-27)
6. The Identification Charge includes the following language on pre-identification instructions: “If you find that the police [did/did not] give this instruction to the witness, you may take this factor into account when evaluating the identification evidence.” Similar language can be used to instruct a jury about the failure to preserve an identification procedure. The Court outlines the points that such a charge should include and notes that
3
counsel should request such a charge when the facts warrant it. The Court asks the Model Jury Charge Committee to amend the model charge. (pp. 27-29)
7. In this case, the officers did not comply with Rule 3:11 or Delgado in full. They did notprepare an electronic recording of Roberts’ out-of-court identification or a contemporaneous, verbatim written account of the exchange between Roberts and Detective Hannibal. They instead used three forms that documented important information about the process. Reliance on the forms alone, though, did not create an adequate record. Under the circumstances, perhaps the best option was one not available at the time: a hearing to assess the reliability of the identification even though defendant could not present evidence of suggestiveness. A hearing would have benefitted not only defendant but also the trial court, by enabling it to fulfill its gatekeeping role. (pp. 29-32)
8. The Court remands this case to the trial court for such a hearing. At this time, without a more complete record, the Court does not find that the absence of a supplemental charge was plain error. See R. 2:10-2. Defendant will have the opportunity to challenge the verdict on remand. If damaging evidence about feedback, witness confidence, or some other factor that affects memory is developed at the hearing, he may have a strong case and be entitled to a new trial. On the other hand, if it turns out that the police essentially tracked Roberts’ fullstatement of confidence on the photo display report form and offered no confirmatory feedback, defendant would be hard-pressed to show that a technical violation of Rule 3:11(d)was “clearly capable of producing an unjust result.” R. 2:10-2. The Court declines to adopt a per se rule that any error in recording an identification, even a technical or insignificant one, requires suppression of the evidence. The remand hearing in this matter should probe what happened during the identification process -- and end with evidence being excluded if it is unreliable, and admitted otherwise. The threshold for suppression remains high. In this case, the trial court will assess that standard in light of what is developed at the remand hearing. At that point, the trial court will also be able to consider whether the lack of a pretrial hearing and absence of a jury charge warrant a new trial. (pp. 32-35)
The matter is REMANDED to the trial court for further proceedings.
JUSTICE ALBIN, dissenting in part, joins with the Court in the progressive steps it takes to improve the recording procedures relating to eyewitness identifications but expresses the view that the trial judge committed plain error by not instructing the jury that a violation of Rule 3:11 -- a rule intended to preserve evidence for trial -- could be considered in assessing whether the State met its burden of proof. Observing that a properly charged jury may have determined that the State fell short of its burden of proving the reliability of the identification, Justice Albin does not believe that Anthony received a fair trial and would thus reverse his conviction and grant him a new trial.
JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed an opinion, dissenting in part
7. In this case, the officers did not comply with Rule 3:11 or Delgado in full. They did notprepare an electronic recording of Roberts’ out-of-court identification or a contemporaneous, verbatim written account of the exchange between Roberts and Detective Hannibal. They instead used three forms that documented important information about the process. Reliance on the forms alone, though, did not create an adequate record. Under the circumstances, perhaps the best option was one not available at the time: a hearing to assess the reliability of the identification even though defendant could not present evidence of suggestiveness. A hearing would have benefitted not only defendant but also the trial court, by enabling it to fulfill its gatekeeping role. (pp. 29-32)
8. The Court remands this case to the trial court for such a hearing. At this time, without a more complete record, the Court does not find that the absence of a supplemental charge was plain error. See R. 2:10-2. Defendant will have the opportunity to challenge the verdict on remand. If damaging evidence about feedback, witness confidence, or some other factor that affects memory is developed at the hearing, he may have a strong case and be entitled to a new trial. On the other hand, if it turns out that the police essentially tracked Roberts’ fullstatement of confidence on the photo display report form and offered no confirmatory feedback, defendant would be hard-pressed to show that a technical violation of Rule 3:11(d)was “clearly capable of producing an unjust result.” R. 2:10-2. The Court declines to adopt a per se rule that any error in recording an identification, even a technical or insignificant one, requires suppression of the evidence. The remand hearing in this matter should probe what happened during the identification process -- and end with evidence being excluded if it is unreliable, and admitted otherwise. The threshold for suppression remains high. In this case, the trial court will assess that standard in light of what is developed at the remand hearing. At that point, the trial court will also be able to consider whether the lack of a pretrial hearing and absence of a jury charge warrant a new trial. (pp. 32-35)
The matter is REMANDED to the trial court for further proceedings.
JUSTICE ALBIN, dissenting in part, joins with the Court in the progressive steps it takes to improve the recording procedures relating to eyewitness identifications but expresses the view that the trial judge committed plain error by not instructing the jury that a violation of Rule 3:11 -- a rule intended to preserve evidence for trial -- could be considered in assessing whether the State met its burden of proof. Observing that a properly charged jury may have determined that the State fell short of its burden of proving the reliability of the identification, Justice Albin does not believe that Anthony received a fair trial and would thus reverse his conviction and grant him a new trial.
JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed an opinion, dissenting in part
