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New NJ State Supreme Court Ruling : State v. Cecilia X. Chen (A-69-08)(063177)

In this appeal, the Court considers whether suggestive behavior by a private party, without any state action,
should be evaluated at a pretrial hearing to determine whether an eyewitness’ identification may be admitted at trial.

There are many DWI cases where the court must decide “was defendant really the driver?” Where the issue is at play it is crucial that defense attys review the process of identification. When the police initiate the process, the law has been clear that defendant is entitled to Wade hearing on whether the process was too suggestive. But what is there is no state action, I.e. it is a friend or relative of the victim who was too suggestive? The Supreme Court today,in State v Chen, the Court ruled that state action or not, the process of eyewitness ID is so fraught with prejudicial peril that the trial court must entertain the Wade type hearing regardless.
HELD: Even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence.
1. This case is not about government conduct.  As a result, the Court is not concerned about deterring future conduct by law enforcement officers.  Nonetheless, the Court must consider the admission of eyewitness identifications tainted by private suggestive procedures in light of the rules of evidence and the trial courts’ gatekeeping function.  Courts have a gatekeeping role to ensure that unreliable, misleading evidence is not admitted. (pp. 12-15)
2. The Court notes that identification evidence has historically raised serious questions about reliability. Today’s decision in State v Henderson contains a broader examination of the extensive body of scientific evidence that has developed in the past thirty years.  Among other things, that evidence reveals the suggestive effect that private actors  can have on an eyewitness’ recollection of events.  In Henderson, the Court concluded that non-State actors like cowitnesses and other sources of information can affect the independent nature and reliability of identification evidence and inflate witness confidence. (pp. 15-26)
3. Because of the pivotal role identification evidence plays in criminal trials, and the risk of misidentification and wrongful conviction from suggestive behavior – whether by governmental or private actors – a private actor’s suggestive words or conduct will require a preliminary hearing under Rule 104 in certain cases to assess whether identification evidence is admissible.  Today in Henderson, the Court modified the traditional Manson/Madison test and held that defendants can obtain a pretrial hearing by showing some evidence of suggestiveness that could lead to a mistaken identification.  The Court makes a modification to Henderson in cases in which there is no police action, requiring a higher, initial threshold of suggestiveness to trigger a hearing, namely, some evidence of highly suggestive circumstances as opposed to simply suggestive conduct.  The Court holds that the following modified approach shall apply to assess the admissibility of identification evidence when there is suggestive behavior but no police action: (1) to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant has the burden of showing a very substantial likelihood of irreparable misidentification. (pp. 26-
30) 4. Applying the above framework to the facts of this case, the Court finds that JC’s words and actions were so highly suggestive that a pretrial hearing is warranted to assess the admissibility of Helen’s identification evidence.  The Court therefore remands the case to the trial court for a Rule 104 hearing. (pp. 30-32)
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