State v. Kwesi Green (080562) (Essex County and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Kwesi Green (A-56/57-17) (080562)
Argued January 2, 2019 -- Decided July 23, 2019
RABNER, C.J., writing for the Court.
In this case, a robbery victim identified her assailant from an extensive database of
digital photos. The witness was mistakenly allowed to review the photos through a
feature of the database meant to be used by law enforcement officers, not eyewitnesses.
In addition, the police saved only the photo the victim ultimately selected -- an image of
defendant. Beyond that, the system contained multiple photos of defendant. The Court
considers what took place in light of known risks associated with eyewitness
identification, as well as case law and a court rule that address how identification
procedures should be conducted and preserved.
The victim, who was robbed at gunpoint while she waited for a bus, described her
assailant to Newark Police Detective Donald Stabile. She said she “got a very good
look” at her assailant and would be able to identify him. The victim then viewed photos
through the HIDTA DataWorks PhotoManager System (HIDTA system or database).
The HIDTA system for the NY/NJ region has millions of photos, including those of all
adults arrested by the Newark Police Department. If someone is arrested in the relevant
area more than once, the system will have multiple photos of the individual.
The HIDTA system has two modes: one for investigators and the other for
witnesses. In “investigative mode,” law enforcement officials can search for a known
suspect by name or other identifier. If the suspect’s identity is not known, an officer can
use investigative mode to narrow the field of photos based on a witness’ description.
Should the witness then select a photo and say the person in the photo resembles her
assailant, an investigator can generate other similar photos to review. Individual photos
can be printed, but no report of the session can be created in investigative mode. Finally,
an officer can click on a photo in investigative mode to reveal a host of information about
the person -- including his or her name and the date and time of arrest.
“Witness mode” is for witnesses to view digital images of mugshots. A witness
can signal whether someone is the suspect or a possible suspect by telling the officer or
by clicking under a photo. At the end of a session, witness mode can generate a report of
the photos displayed, how long each was displayed, and whether the witness marked a
1
photo. The report generates a log of numbers, each of which links to a single photo. It is
also possible to print individual photos in witness mode.
Detective Stabile interviewed the victim at the police station shortly after the
armed robbery. He then entered various parameters in the HIDTA system in
investigative mode. Without switching to witness mode, he set the witness up at a
computer, explained how to scroll through photos with six on a screen at a time, and
asked her to notify him if she saw her assailant or anyone who looked similar. According
to the detective, the victim looked through the narrowed field of digital photos for several
minutes. She then told the detective that one of the photos looked like the assailant. The
detective did not know how many photos she had viewed and did not print the particular
photo she flagged. Still in investigative mode, the detective narrowed the field to images
similar to the one the witness selected. Within a few seconds, she identified defendant
from the first page of photos she viewed next. The detective did not print the six photos
from the final screen; he printed only the single photo the victim identified as her
assailant. No report of the photos she viewed was generated; nor could a report have
been generated from investigative mode.
Defendant was charged with first-degree robbery and weapons offenses.
Defendant moved to suppress the victim’s out-of-court identification, and the trial court
held an evidentiary hearing and then granted defendant’s motion. The State appealed. A
majority of the Appellate Division panel found the trial court properly determined that
eleven additional photos should have been preserved under Rule 3:11. However, the
majority vacated the order of suppression and remanded for the trial judge to consider the
full range of remedies in Rule 3:11(d). The Court granted the State’s motion for leave to
appeal the order of suppression, 233 N.J. 9 (2018), and defendant’s cross-motion for
leave to appeal the order of remand to reconsider the remedy, 233 N.J. 16 (2018).
HELD: Under the circumstances, the trial court properly suppressed the identification in
this case. The Court proposes revisions to Rule 3:11 to offer clearer guidance on which
photos officials should preserve when they use an electronic database. In addition, to
guard against misidentification, the Court places on the State the obligation to show that
an eyewitness was not exposed to multiple photos or viewings of the same suspect.
1. State v. Henderson reviewed concerns about the reliability of eyewitness identification
and considered multiple variables that “can affect and dilute memory and lead to
misidentifications.” 208 N.J. 208, 218 (2011). Among other variables, multiple viewings
of a suspect can affect the reliability of an identification through “mugshot exposure” and
“mugshot commitment.” Id. at 255-56. The Court in Henderson therefore observed that
“law enforcement officials should attempt to shield witnesses from viewing suspects or
fillers more than once.” Id. at 256. (pp. 13-16)
2
2. In State v. Delgado, the Court required officers to “make a written record detailing the
out-of-court identification procedure, including the place where the procedure was
conducted, the dialogue between the witness and the interlocutor, and the results.” 188
N.J. 48, 63 (2006). More recently, in Henderson, 208 N.J. at 252, and State v. Anthony,
237 N.J. 213, 227, 235 (2019), the Court reaffirmed those principles. (pp. 16-17)
3. The Court adopted an enhanced model jury charge in response to Henderson that
includes a proposed instruction on multiple viewings and other variables. Model Jury
Charge (Criminal), “Identification: In-Court and Out-of-Court Identifications” 6 (rev.
July 19, 2012). Jurors are told that they “may consider whether the witness viewed the
suspect multiple times during the identification process and, if so, whether that affected
the reliability of the identification.” Ibid. The Court also adopted a new court rule, Rule
3:11, in response to Delgado and Henderson. However, Rule 3:11 does not address in
detail what should be recorded when a witness views a database of digital photos or an
electronic mug book. (pp. 17-19)
4. The Appellate Division decisions on which the State relies preceded Henderson or the
date it went into effect and were decided before the adoption of Rule 3:11. Recent
technological developments complicate the analysis in those opinions, and none of those
cases considered Rule 3:11 or the problem of mugshot exposure. (pp. 19-22)
5. The Attorney General provided information about the use of electronic and hard copy
mug books throughout the State, which the Court recounts in detail. Notably, just 3 of
479 departments use only paper mug books, in contrast to the 145 departments that use
electronic or digital databases that contain photographs. (pp. 22-23)
6. Multiple views of the same person can create a risk of mugshot exposure -- the
possibility that a witness will make an identification based on a memory of an earlier
photo and not the original event. Henderson, 208 N.J. at 255-56. At pretrial hearings,
defendants are able to explore whether an eyewitness viewed the same suspect more than
once during identification procedures. Id. at 290. To guard against the risk of mugshot
exposure, the Court requires the following practice going forward: When relevant, the
State will have the obligation to demonstrate that an eyewitness was not exposed to
multiple photos or viewings of the same suspect. If the prosecution cannot satisfy that
burden, trial judges are to consider that factor when they assess whether the identification
evidence can be admitted at trial. If there is a “very substantial likelihood of irreparable
misidentification,” the evidence should be excluded. Id. at 289. (pp. 24-26)
7. Rule 3:11 needs to be updated. To allow for appropriate review of an out-of-court
identification procedure that used a digital database or paper mug book, administrators
should preserve (1) the photo of the suspect the witness selected, along with all other
photos on the same screen or page, and (2) any photo that a witness says depicts a person
who looks similar to the suspect, along with all other photos on that screen or page. The
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Court asks the Criminal Practice Committee to revise Rule 3:11 on an expedited basis.
The Court asks the Model Jury Charge Committee to amend the model charge on
multiple viewings and add language about the failure to preserve an identification
procedure. (pp. 26-28)
8. The Court delays the implementation of today’s ruling, aside from defendant Green,
until thirty days from the date the Court approves revisions to Rule 3:11, at which time
this decision will apply prospectively. (p. 28)
9. When the record of an identification “is lacking in important details,” and it was
feasible to preserve them, Rule 3:11(d) affords a judge discretion, consistent with
appropriate case law, to bar the evidence, redact part of it, and/or “fashion an appropriate
jury charge” if the evidence is admitted. Under the circumstances, the Court cannot find
that the trial judge abused his discretion when he suppressed the identification. The
Court does not suggest that any time a full record of an identification is not preserved, the
evidence must be excluded. Indeed, suppression should be the remedy of last resort, and
judges should explain why other remedies in Rule 3:11(d) are not adequate before barring
identification evidence. It is the confluence of factors in this appeal -- the witness’s use
of investigative mode during the identification process, the failure to preserve all but one
photo, and defendant’s history of multiple recent arrests, which would have been
captured in the HIDTA system the witness viewed -- that casts doubt on the reliability of
the identification process and supports the trial court’s conclusion. (pp. 28-30)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICE SOLOMON, concurring in part and dissenting in part, concurs in
the majority’s ruling but not in its remedy. Justice Solomon explains that the trial court
discussed only whether the evidence should be suppressed and, in doing so, did not
measure the evidence in the record against the prevailing legal standard: whether
defendant had shown a “very substantial likelihood of irreparable misidentification”
under the circumstances. See Henderson, 208 N.J. at 289. Because a trial court must
make that determination before deciding whether the high threshold for suppression has
been vaulted, Justice Solomon would affirm the Appellate Division and remand to the
trial court to “probe what happened during the identification process” and meaningfully
assess the identification’s reliability. Anthony, 237 N.J. at 239.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE SOLOMON
filed a separate opinion, concurring in part and dissenting in part.
4
SUPREME COURT OF NEW JERSEY
A-56/57 September Term 2017
080562
State of New Jersey,
Plaintiff-Appellant/Cross-Respondent,
v.
Kwesi Green,
Defendant-Respondent/Cross-Appellant.
On appeal from the Superior Court,
Appellate Division.
Argued Decided
January 2, 2019 July 23, 2019
Lucille M. Rosano, Special Deputy Attorney
General/Assistant Prosecutor, argued the cause for
appellant/cross-respondent (Theodore N. Stephens, II,
Acting Essex County Prosecutor, attorney; Lucille M.
Rosano, of counsel and on the briefs).
Peter T. Blum, Assistant Deputy Public Defender, argued
the cause for respondent/cross-appellant (Joseph E.
Krakora, Public Defender, attorney; Peter T. Blum, of
counsel and on the briefs).
Lauren Bonfiglio, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Lauren
Bonfiglio, of counsel and on the brief).
1
Lawrence S. Lustberg argued the cause for amici curiae
Innocence Project, American Civil Liberties Union of
New Jersey, and Innocence Network (Gibbons and
American Civil Liberties Union of New Jersey
Foundation, attorneys; Lawrence S. Lustberg, Farbod K.
Faraji, and Alexander Shalom, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this case, a robbery victim identified her assailant from an extensive
database of digital photos. To assess the reliability of the identification
process requires an understanding of modern-day digital databases.
In some respects, they are today’s equivalent of a paper mugshot book.
In other ways, digital systems are far superior, thanks to advances in
technology. The system used here, for example, allows officers to pare down a
large field of photos to match a witness’s physical description of a suspect.
When an eyewitness selects a photo that looks similar to the culprit, the system
can further narrow the field to display only other similar images. Officers can
also print copies of photos and generate a report of what a witness viewed.
In this appeal, the witness was mistakenly allowed to review digital
photos through a feature of the database meant to be used by law enforcement
officers, not eyewitnesses. In addition, the police saved only the photo the
victim ultimately selected -- an image of defendant. Beyond that, the system
contained multiple photos of defendant because of his recent prior arrests,
2
which raises concerns about mugshot exposure and its effect on the reliability
of identifications.
We consider what took place in light of known risks associated with
eyewitness identification, as well as case law and a court rule that address how
identification procedures should be conducted and preserved. We also propose
revisions to Rule 3:11 to offer clearer guidance on which photos officials
should preserve when they use an electronic database to identify a suspect. In
addition, to guard against misidentification, we place on the State the
obligation to show that an eyewitness was not exposed to multiple photos or
viewings of the same suspect.
Under the circumstances, we find that the trial court properly suppressed
the identification in this case. We therefore affirm and modify the judgment of
the Appellate Division majority, which largely upheld the trial court.
I.
To recite the facts, we draw heavily on the testimony at the suppression
hearing. On February 11, 2014, a woman was robbed at gunpoint while she
waited at a bus stop in Newark. A man approached her, pointed a black
handgun at her chest, demanded her pocketbook, and asked several questions
about other items she was carrying. The woman handed her bag to the man,
who walked away.
3
Soon after, the victim described her assailant to Newark Police Detective
Donald Stabile and another officer at the police station. She said the man was
about 5’7” tall, weighed between 130 and 150 pounds, had dark skin, a round
face, short hair, and no facial hair, and was in his early twenties. The victim
said she “got a very good look” at her assailant and would be able to identify
him.
Based on her description, Detective Stabile input certain criteria into a
digital database of photos, from which the victim ultimately identified
defendant Kwesi Green. Because the identification is central to this appeal, we
describe in detail both the database and the process the police followed.
A.
The victim viewed photos through the HIDTA DataWorks
PhotoManager System (HIDTA system or database). HIDTA -- an
abbreviation for High Intensity Drug Trafficking Area -- is a federally funded
grant program that provides assistance to state and local law enforcement
agencies to combat drug trafficking in a coordinated manner. The Newark
Police Department participates in the New York/New Jersey HIDTA region,
which covers seventeen counties in New York and northern New Jersey,
including Essex County.
The HIDTA system for the NY/NJ region has millions of digital photos,
4
including photos of all adults arrested by the Newark Police Department. 1
When officers who participate in HIDTA process a defendant, they enter the
individual’s arrest photo in the PhotoManager System. If someone is arrested
in the relevant area more than once, the system will have multiple photos of
the individual -- one for each arrest.
The HIDTA system has two modes: one for investigators and the other
for witnesses. “Investigative mode” -- as its name suggests -- is designed for
law enforcement officials. Investigators can search for a known suspect by
name, date of birth, or some other identifier; if the suspect’s identity is not
known, an officer can use investigative mode to narrow the field of photos for
a witness to view. Specifically, if a witness describes an unknown person’s
age, race, height, weight, hair color, facial features, or other pedigree
information, an officer can tailor a search to match those parameters. Should
1
Detective Stabile, who testified he had used Newark’s HIDTA system
hundreds of times, said the database contained photos only of individuals
arrested by the Newark Police Department. A second witness, Robert Vitale,
testified the system had photos of individuals arrested in all seventeen
counties. At the time of the hearing, Mr. Vitale was employed by DataWorks
as the senior systems engineer for the New York City Police Department’s
PhotoManager system. He supervised the design, installation, and
maintenance of that system. Mr. Vitale testified that he was familiar with the
Newark HIDTA system and had spoken with DataWorks engineers responsible
for it, but he had not worked on a Newark terminal. To the extent there is a
discrepancy in the record about which photos are included in the Newark
system, the issue is not material to this appeal.
5
the witness then select a photo and say the person in the photo resembles her
assailant, an investigator can highlight that photo and generate other similar
photos to review. Individual photos displayed or selected in investigative
mode can be printed, but no report of the session can be created.
Using a feature for similar images or photos, an officer can also generate
a photo array -- a group of photos that look like a certain image -- in
investigative mode. As the array is created, particular photos will reappear
until the officer replaces them with other images. The final array can be
saved.
In addition, an officer can click on a photo in investigative mode to
reveal a host of information about the person -- including his or her name and
the date and time of arrest.
“Witness mode” is for witnesses to view digital images of mugshots. It
is similar to using an old-fashioned, paper mug book. A witness can signal
whether someone is the suspect or a possible suspect by telling the officer or,
as Mr. Vitale testified, by clicking under a photo. At the end of a session,
witness mode can generate a report of the photos displayed, how long each was
displayed, and whether the witness marked a photo, according to Mr. Vitale.
The report generates a log of identifier numbers, each of which links to a
single photo. It is also possible to print individual photos in witness mode.
6
Mr. Vitale testified that the Newark Police Department had the ability to use
witness mode in February 2014 -- when the robbery took place.
The two modes work in tandem. For example, an officer can first
narrow the universe of photos in investigative mode, based on a witness’s
description. Next, the officer can create a session in witness mode for the
witness to examine the images. If the witness identifies a suspect, the session
is complete, and a report can be generated. If the witness instead identifies a
photo that looks similar to the suspect, the officer can close out the session,
switch back to investigative mode, and search for additional similar photos to
narrow the field further. The witness can then examine the more limited group
of photos as part of a new session in witness mode. Each session from witness
mode can be preserved, and officers can print individual photos from either
mode.
B.
As noted earlier, Detective Stabile interviewed the victim at the police
station shortly after the armed robbery. He then entered various parameters in
the HIDTA system based on the description of the assailant’s height, weight,
age, skin color, and hair. The search was done in investigative mode. Without
switching to witness mode, the detective set the witness up at a computer
monitor, explained how to scroll through pages of photos, with six on a screen
7
at a time, and asked her to notify him immediately if she saw her assailant or
anyone who looked similar.
According to the detective, the victim looked through the narrowed field
of digital photos for several minutes. She then told the detective that one of
the photos looked like the assailant. The detective did not know how many
photos she had viewed and did not print the particular photo she flagged. Still
in investigative mode, the detective narrowed the field to images similar to the
one the witness selected. Within a few seconds, she identified defendant from
the first page of photos she viewed next. The detective could not recall if the
photo the witness had said looked similar to her assailant was repeated among
the six photos from which she made her identification.
The detective did not print the six photos from the final screen; he
printed only the single photo the victim identified as her assailant. No report
of the photos she viewed was generated; nor could a report have been
generated from investigative mode.
C.
The grand jury returned an indictment that charged defendant with first-
degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant moved to suppress the
8
victim’s out-of-court identification, and the trial court held an evidentiary
hearing at which Detective Stabile and Mr. Vitale testified. Afterward, the
court suppressed the identification.
The court found the police had conducted an identification procedure
within the meaning of Rule 3:11. Under the Rule and relevant case law, the
court concluded that officers should have preserved the image the witness said
looked like the suspect, the five other images displayed on that screen, a s well
as the final six images that included defendant’s photo -- a total of eleven
photos beyond the one the officer preserved. The court noted it was feasible to
print all eleven images.
In light of the record developed at the hearing, the trial judge
distinguished State v. Joseph, 426 N.J. Super. 204 (App. Div. 2012). Joseph
involved a witness who reviewed photos in the HIDTA database. Id. at 213.
The Appellate Division in that case concluded that law enforcement’s failure
to preserve all of the photos the victim viewed was “not fatal to the admission
of an out-of-court identification.” Id. at 223.
Joseph, in turn, relied on cases in which witnesses viewed random
groups of photos in a paper mug book and on a computer screen. Ibid.(discussing State v. Janowski, 375 N.J. Super. 1, 6-8 (App. Div. 2005); State v.
Ruffin, 371 N.J. Super. 371, 395 (App. Div. 2004)). By contrast, the trial
9
court here found, the “application of the HIDTA system [is] not random.” As
the court explained, the detective entered search parameters from the victim’s
general description to generate a series of images, and later narrowed the
universe of photos when the witness selected an image that looked similar to
her assailant. Once the parameters were entered, “[i]t was no longer random.”
Moreover, the court observed, “[a]ny suggestion” the process was “random
end[ed] at the point where the witness said that looks like him and the officer
hit [the] similar” function.
Because of the officer’s failure to preserve the other eleven photos, the
court suppressed the out-of-court identification. The trial court’s ruling did
not extend to any in-court identification at trial. 2
The State appealed. A majority of the Appellate Division panel
concluded that “the plain language” of Rule 3:11 “requires that when digital
photos are shown during an identification procedure, a record of the photos
used must be made.” The majority observed that its interpretation was
consistent with the history of the Rule, the Court’s “longstanding policy” to
2
The Innocence Project and related amici voice concerns about the suggestive
nature of in-court identifications that follow an earlier identification
procedure. Because the issue has not been raised by the parties, we do not
address it at this time. See State v. O’Driscoll, 215 N.J. 461, 479 (2013);
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91 N.J. 38, 48-
49 (1982).
10
provide “broad discovery” to criminal defendants, and “concerns about
identification procedures” discussed in State v. Delgado, 188 N.J. 48 (2006),
and State v. Henderson, 208 N.J. 208 (2011). Among other things, the
majority pointed to the risk of mugshot exposure from multiple views of
photos of the same person.
The majority found the trial court properly determined that eleven
additional photos should have been preserved under Rule 3:11. However, the
majority vacated the order of suppression and remanded for the trial judge to
consider the full range of remedies in Rule 3:11(d).
The dissenting Appellate Division judge relied on Ruffin, Janowski, and
Joseph to reach a contrary result. It also observed that “there is no police
suggestiveness to be counteracted” when victims view mug books for unknown
suspects. In the dissent’s view, Rule 3:11 does not “address the use of . . .
computerized mug books to search for an unknown perpetrator”; nor does the
Rule’s history. To require the preservation of such photos, the dissent added,
would “needlessly burden” law enforcement.
We granted the State’s motion for leave to appeal the order of
suppression, 233 N.J. 9 (2018), and defendant’s cross-motion for leave to
appeal the order of remand to reconsider the remedy, 233 N.J. 16 (2018). We
also granted leave to appear as amici curiae to the Attorney General and to the
11
Innocence Project, the American Civil Liberties Union of New Jersey, and the
Innocence Network (collectively, the Innocence Project), which filed a joint
brief.
After oral argument, we asked for supplemental briefing about the use of
electronic and hard copy mug books by law enforcement throughout the State.
We also asked for details about defendant’s prior arrest record.
II.
The State argues that Rule 3:11 does not apply when the HIDTA system
is used to investigate an unknown suspect. As a result, the State submits, the
Rule does not require the preservation of the additional photographs the trial
court ordered. In the alternative, if the Rule was violated, the State contends
that a properly tailored jury instruction, not suppression, is the appropriate
remedy.
The Attorney General echoes those arguments. He contends that Rule
3:11 does not apply to the review of random mugshots to try to locate a
suspect. Law enforcement must preserve only the photo the witness identified,
the Attorney General argues.
Defendant submits that case law, Rule 3:11, and “fundamental notions of
justice” required law enforcement to preserve the photos used in the HIDTA
system. In addition, defendant argues that the trial court properly suppressed
12
the identification because the use of the HIDTA system was “prone to create a
mugshot exposure problem” and the State could not reconstruct “the lost trail
of photos.”
The Innocence Project similarly contends that Rule 3:11 applies to out-
of-court identifications made with the use of the HIDTA database, even when
the police do not have a known suspect. Amicus also maintains that social
science principles about the reliability of eyewitness identification evidence
apply with equal force to law enforcement’s use of the HIDTA database.
Finally, the Innocence Project submits that suppression is appropriate here.
III.
A.
This appeal raises questions about identification evidence in the context
of electronic mug books. Henderson reviewed concerns about the reliability of
eyewitness identification evidence more broadly. The Court discussed how
“memory is malleable” and observed that “eyewitness misidentification is the
leading cause of wrongful convictions” nationwide. Henderson, 208 N.J. at
218.
Henderson considered multiple variables that “can affect and dilute
memory and lead to misidentifications.” Ibid. The factors include “system
variables” that law enforcement can control, like the use of a lineup or a mug
13
book, and “estimator variables” that are outside the control of the legal system,
like lighting and memory decay. See ibid.
The Court ultimately determined that the then-existing standard to
evaluate eyewitness identifications -- derived from Manson v. Brathwaite, 432
U.S. 98 (1977), and State v. Madison, 109 N.J. 223 (1988) -- did “not offer an
adequate measure for reliability or sufficiently deter inappropriate police
conduct.” Henderson, 208 N.J. at 218. As a result, the Court “revised the
legal framework for the admission of eyewitness identification evidence .”
State v. Anthony, 237 N.J. 213, 226 (2019). Today, if defendants can present
some evidence of suggestiveness related to a system variable, they are entitled
to a hearing to explore all relevant factors and challenge the admission of the
identification evidence. Ibid. (citing Henderson, 208 N.J. at 288-93).
Among other variables, the Court has recognized that multiple viewings
of a suspect can affect the reliability of an identification. Henderson, 208 N.J.
at 255. With “successive views of the same person,” it can be “difficult to
know whether the later identification stems from a memory of the original
event or a memory of the earlier identification procedure.” Ibid.
The problem can surface when a witness uses mugshot books to make an
identification. If a book contains multiple arrest photos of the same person,
there is a risk of “mugshot exposure.” See ibid. That happens, for example,
14
“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.” Ibid. Multiple studies have revealed that “although
15% of witnesses mistakenly identified an innocent person viewed in a lineup
for the first time, that percentage increased to 37% if the witness had seen the
innocent person in a prior mugshot.” Id. at 255-56 (citing Kenneth A.
Deffenbacher et al., Mugshot Exposure Effects: Retroactive Interference,
Mugshot Commitment, Source Confusion, and Unconscious Transference, 30
L. & Hum. Behav. 287, 299 (2006)).
“Mugshot commitment” is a related concern. It “occurs when a witness
identifies a photo that is then included in a later lineup procedure. Studies
have shown that once witnesses identify an innocent person from a mugshot, ‘a
significant number’ then ‘reaffirm[] their false identification’ in a later lineup
-- even if the actual target is present.” Id. at 256 (quoting Gunter Koehnken et
al., Forensic Applications of Line-Up Research, in Psychological Issues in
Eyewitness Identification 205, 219 (Siegfried L. Sporer et al. eds., 1996)).
Because mugshot exposure and commitment can affect the reliability of
an identification and heighten the risk of misidentification, the Court in
Henderson observed that “law enforcement officials should attempt to shield
witnesses from viewing suspects or fillers more than once.” Ibid. Henderson,
15
however, did not specifically address electronic mug books or digital databases
of arrest photos.
Henderson is consistent with guidance that the U.S. Department of
Justice issued years earlier. In its 1999 guide for law enforcement on
eyewitness evidence, the Justice Department discussed how investigators
should prepare mug books. Nat’l Inst. of Justice, U.S. Dep’t of Justice,
Eyewitness Evidence: A Guide for Law Enforcement 17-18 (1999). The
Department stressed that mug books should be composed “in such a manner
that individual photos are not suggestive.” Id. at 17. To that end, the
Department stated that “preparer[s] should . . . [e]nsure that only one photo of
each individual is in the mug book.” Ibid.
B.
In Anthony, we recently reviewed another important topic: the need to
make a record of identification procedures. Anthony traced the issue through a
line of cases that dates back decades. In 1972, in State v. Earle, this Court
explained that
enforcement authorities should . . . make a complete
record of an identification procedure if it is feasible to
do so . . . . The identity of persons participating in a
[live] lineup should be recorded, and a picture should
be taken if it can be. If the identification is made or
attempted on the basis of photographs, a record should
be made of the photographs exhibited. We do not say
16
a failure hereafter to follow such procedures will itself
invalidate an identification, but such an omission, if not
explained, should be weighed in deciding upon the
probative value of the identification, out-of-court and
in-court.
[60 N.J. 550, 552 (1972).]
In Delgado, the Court required law enforcement officers to “make a
written record detailing the out-of-court identification procedure, including the
place where the procedure was conducted, the dialogue between the witness
and the interlocutor, and the results.” 188 N.J. at 63. More recently, in
Henderson, 208 N.J. at 252, and Anthony, 237 N.J. at 227, 235, the Court
reaffirmed the principles outlined in Delgado.
Those earlier decisions, however, did not focus specifically on what
must be preserved when a witness makes an identification from a paper or
electronic mug book.
C.
The Court adopted an enhanced model jury charge in response to
Henderson. It includes a proposed instruction on multiple viewings and other
variables. The instruction informs the jury that multiple viewings of the same
person increase the risk of mistaken identification. Model Jury Charge
(Criminal), “Identification: In-Court and Out-of-Court Identifications” 6 (rev.
July 19, 2012). As a result, jurors are told that they “may consider whether the
17
witness viewed the suspect multiple times during the identification process
and, if so, whether that affected the reliability of the identification.” Ibid.
The Court also adopted a new court rule in response to Delgado and
Henderson. See R. 3:11; see also Anthony, 237 N.J. at 229-30 (tracing the
Rule’s history). We reviewed Rule 3:11 at length in Anthony and focused on
law enforcement’s obligation to record the dialogue between a witness and an
officer. 237 N.J. at 230-34.
The focus in this case is on how to record the identification process
when a witness selects a suspect from a series of photos. Rule 3:11 addresses
the topic in the following two sections:
(a) Recordation. An out-of-court identification
resulting from a photo array, live lineup, or showup
identification procedure conducted by a law
enforcement officer shall not be admissible unless a
record of the identification procedure is made.
....
(c) Contents. The record of an out-of-court
identification procedure is to include details of what
occurred at the out-of-court identification, including
the following:
....
(5) if a photo lineup, the photographic array, mug
books or digital photographs used . . . .
18
As is apparent from its text, the Rule does not address in detail what should be
recorded when a witness views a database of digital photos or an electronic
mug book.
Rule 3:11 also sets forth a number of remedies when the record is
deficient:
If the record that is prepared is lacking in important
details as to what occurred at the out-of-court
identification procedure, and if it was feasible to obtain
and preserve those details, the court may, in its sound
discretion and consistent with appropriate case law,
declare the identification inadmissible, redact portions
of the identification testimony, and/or fashion an
appropriate jury charge to be used in evaluating the
reliability of the identification.
[R. 3:11(d).]
D.
The State relies on several Appellate Division decisions that preceded
Henderson or the date it went into effect, and were decided before the adoption
of Rule 3:11. The rulings addressed the use of paper or electronic mug books
to search for an unknown suspect and, in each case, the Appellate Division
concluded the police needed to preserve only the photo of the culprit the
victim selected.
1.
In State v. Ruffin, a burglary victim looked through two-and-a-half
19
loose-leaf binders of arrest photos of black males -- more than 400 photos
altogether. 371 N.J. Super. at 378-79. The photos were arranged randomly;
“[t]here was no separation based on height, weight, hair style, facial hair or
complexion.” Id. at 379, 395. Because the police did not preserve the binders,
the trial court excluded the victim’s out-of-court identification. Id. at 380.
The Appellate Division reversed. The court observed that the process
“was investigatory, not confirmatory,” and that the presentation of the random
photographs was “neutral.” Id. at 395. The Appellate Division added that it
would be “cumbersome” to require the police to preserve all of the photos the
witness viewed, which “would also place an unnecessary burden on” the use of
a “proper law enforcement tool for no justifiable purpose.” Ibid.
In State v. Janowski, a robbery victim identified an unknown assailant
from 36 to 60 arrest photos displayed on a computer screen. 375 N.J. Super. at
4-5. The photos depicted white men “within the age range the victim
provided.” Id. at 5.
The Appellate Division rejected the trial court’s finding that the photos
constituted an array, which must be preserved in full. Id. at 5, 7. Instead, the
Appellate Division considered each screen “the equivalent of a page of a mug
shot book.” Id. at 7. Relying on Ruffin, the court held that the State’s failure
to retain all of the “randomly selected photographs, kept for the purpose of
20
investigation, not confirmation,” and shown to the victim to try to find a
suspect, was “not fatal to the admission of the out-of-court identification.” Id.
at 8-9.
More recently, in State v. Joseph, three victims robbed at gunpoint in
Newark identified an unknown assailant from the same HIDTA database used
in this case. 426 N.J. Super. at 212-15. The Court applied the same reasoning
used in Ruffin and Janowski and concluded the police needed to preserve only
the photo the victims selected. Id. at 223.
2.
Recent developments complicate the analysis in those opinions. First,
developments in technology muddy the clear-cut divide earlier decisions relied
on between an examination of random photos in a mug book, which
historically did not have to be preserved, and the use of potentially suggestive
photo arrays, which plainly did.
None of the decisions, even Joseph, delve into the features of the
HIDTA PhotoManager System; presumably, the record in Joseph did not
include the details before the Court today. Yet testimony at the evidentiary
hearing reveals that, unlike a paper mug book, the HIDTA system offers more
than a random, digital assortment of photos.
In this case, a detective first entered information about the suspect’s
21
race, age, weight, and appearance into the database. The victim then selected a
photo of someone that she believed looked like the robber. Based on her
feedback, the detective further narrowed the search results to look for other
similar images. By that point at least, the search was no longer random. Nor
was it a photo array with a known suspect. The identification process here,
made possible by a more sophisticated computer program, lies somewhere
along the continuum between random mugshots in a book and potentially
suggestive photo arrays with a known suspect.
Second, as noted above, all three Appellate Division cases preceded
developments in the case law and court rules. Ruffin and Janowski predated
Henderson, and Joseph properly did not apply Henderson retroactively. See
Joseph, 426 N.J. Super. at 225 n.5. All three decisions preceded Rule 3:11.
As a result, none of the cases considered the Rule or the problem of mugshot
exposure, which the HIDTA system presents. See Henderson, 208 N.J. at 255-
56.
IV.
After oral argument, the Court asked the Attorney General to provide
information about the use of electronic and hard copy mug books throughout
the State. The Attorney General surveyed 479 “police departments,” including
every municipal police department, the Delaware River Port Authority, Morris
22
County Park Police, New Jersey Human Services, New Jersey Transit,
Palisades Interstate Parkway, and campus police. The survey revealed the
following:
 6 of 479 police departments use hard copy or paper mug books as
part of a department’s identification procedure. Three of those
departments use only hard copy or paper mug books.
 145 of 479 police departments use electronic or digital databases
that contain photographs. The rest do not use that type of
identification procedure.
 22 of the 145 police departments that use electronic or digital
databases use the HIDTA Digital PhotoManager system. The
other departments use any of more than two dozen different
systems.
 Neither the State Police nor the Division of Criminal Justice use
paper mug books or digital databases as part of their identification
procedures.
 No County Prosecutor’s office uses paper mug books; ten use
various digital databases, including the HIDTA Digital
PhotoManager System.
23
V.
A.
Because of the nature of the HIDTA system, we return to the issue of
multiple viewings of the same person during an identification procedure. Mug
books are made up of arrest photos, and if an individual has been arrested
more than once, multiple photos of the person will appear in both a paper mug
book and a digital database.3
As noted earlier, multiple views of the same person can create a risk of
mugshot exposure -- the possibility that a witness will make an identification
based on a memory of an earlier photo and not the original event. Henderson,
208 N.J. at 255-56. Research reviewed in Henderson showed that mistaken
identifications increased from 15 to 37% when a witness had seen a photo of
an innocent person in a prior mugshot. Ibid. (citing Deffenbacher, 30 L. &
Hum. Behav. at 299). In light of those results, it is not surprising that the
Department of Justice issued guidance to law enforcement to “[e]nsure that
only one photo of each individual is in the mug book.” Nat’l Inst. of Justice at
17.
3
In the HIDTA system’s investigative mode, if a witness selects a photo that
looks like a suspect, and an investigator narrows the field to similar images, it
is unclear from the record whether the look-alike photo will reappear. In this
case, the detective did not recall whether the photo that looked similar to the
suspect appeared twice.
24
At pretrial hearings, defendants are now able to explore whether an
eyewitness viewed the same suspect more than once during identification
procedures. Henderson, 208 N.J. at 290. To guard against the risk of mugshot
exposure, we exercise our supervisory powers under Article VI, Section 2,
Paragraph 3 of the State Constitution to require the following practice going
forward: When relevant, the State will have the obligation to demonstrate that
an eyewitness was not exposed to multiple photos or viewings of the same
suspect. See id. at 254, 270-71 (exercising supervisory powers relating to the
identification process); Delgado, 188 N.J. at 63 (same). If the prosecution
cannot satisfy that burden, trial judges are to consider that factor when they
assess whether the identification evidence can be admitted at trial. If there is a
“very substantial likelihood of irreparable misidentification,” the evidence
should be excluded. Henderson, 208 N.J. at 289 (citing Manson, 432 U.S. at
116).
We recognize the above approach will create a practical challenge for
the few departments that rely solely on paper or hard copy mug books. That
said, only 3 of nearly 500 departments statewide still use that method
exclusively. The same obligation will apply to the 145 departments that use
electronic databases. In that regard, the record in this case shows how
sophisticated the HIDTA PhotoManager System is. It can narrow a field of
25
photos based on a suspect’s age, height, weight, skin color, hair, and facial
hair. A defendant’s name and an identifier number are attached to each photo
as well. It stands to reason, then, that technical solutions can be found to
eliminate multiple photos of the same person in commercially available
electronic databases. 4
Digital databases already include measures to prevent witnesses from
gaining access to extraneous, possibly prejudicial information about a person’s
arrest history. With the benefit of proper training, law enforcement officers
should use features like the HIDTA PhotoManager System’s witness mode
when they ask witnesses to view digital or electronic mug books.
B.
We note as well that Rule 3:11 needs to be updated. The parties present
thoughtful views about the text of the current Rule. Those arguments highlight
the need for greater clarity in this area. We rely on our rulemaking authority,
N.J. Const. art. VI, § 2, ¶ 3, to offer clearer guidance about the type of
evidence law enforcement should preserve when a witness identifies a suspect
4
DataWorks’s current website says its “system can be configured to not allow
multiple images of an individual to a lineup.” Digital PhotoManager,
DataWorks Plus, http://www.dataworksplus.com/dpm.html (last visited June
27, 2019). The site does not say how that is accomplished or how long the
feature has been available. Testimony at the suppression hearing did reveal
that a log of unique identifier numbers can be generated in witness mode, and
that each number is linked to an individual photo.
26
from a digital or electronic database.5 For that reason, we do not address at
length certain arguments raised by the parties about the meaning of the current
Rule. See Anthony, 237 N.J. at 230 & n.2.
To allow for appropriate review of an out-of-court identification
procedure that used a digital database or paper mug book, administrators
should preserve (1) the photo of the suspect the witness selected, along with all
other photos on the same screen or page, and (2) any photo that a witness says
depicts a person who looks similar to the suspect, along with all other photos
on that screen or page. That requirement will establish a record of the photos
viewed at pivotal moments: when the witness meaningfully narrows the field
of images and ultimately makes a final selection. It will also allow all parties
and the court to assess with care the nature of the identification process and
any suggestive aspects of the process. Aside from the risk of multiple
viewings addressed above, persuasive reasons have not been presented to
require that every photo reviewed during the entire identification procedure be
preserved.
We ask the Criminal Practice Committee to revise Rule 3:11 consistent
with the above concepts. We also ask the Model Jury Charge Committee to
5
We use the terms “digital” and “electronic” interchangeably in this opinion.
The opinion and any revisions to Rule 3:11 should be interpreted to encompass
any similar medium as well.
27
amend the model charge on multiple viewings and add language about the
failure to preserve an identification procedure. See id. at 235.
We recognize it will take time for the Committee to propose changes to
the Rule. Likewise, the Attorney General will need time to disseminate
guidance to the law enforcement community about the proper use of digital
databases, including their different modes, and the specific photos that must be
preserved. Aside from defendant Green, we therefore delay the
implementation of today’s ruling until thirty days from the date the Court
approves revisions to Rule 3:11, at which time this decision will apply
prospectively. See Henderson, 208 N.J. at 302 (applying ruling prospectively
because of the effect on the administration of justice). We respectfully ask the
Committee to propose revisions on an expedited basis.
VI.
We next consider the remedy in this case. The detective who
administered the identification procedure preserved only one photo -- the one
the victim identified as her assailant. The trial court concluded the detective
should have preserved the eleven additional photos described above.
In our judgment, the manner in which the detective conducted the
identification procedure is also problematic. It was a mistake for the victim to
be allowed to view photos of possible suspects through the HIDTA system’s
28
investigative mode. As noted above, that mode is designed for investigators to
narrow a large field of photos based on a witness’s description and feedback.
Witnesses should not examine photos in investigative mode for a number
of reasons. That mode allows eyewitnesses to access details that witnesses
should not see, like a defendant’s name and the date and place of arrest. It
repeats individual photos when an array is created. And it cannot generate a
report of what an eyewitness viewed. By contrast, witness mode limits access
to potentially suggestive information; allows witnesses to examine suitable and
narrowed fields of photos; and enables administrators to keep a record of the
session.
Finally, we note the real possibility of mugshot exposure in this case.
The armed robbery took place in Newark on February 11, 2014. In the four
months leading up to that date, defendant was arrested twice in Newark as an
adult. Photos from both arrests would have been part of Newark’s HIDTA
system, which the victim viewed. In addition, the detective could not recall
whether the photo the witness said looked like the culprit appeared a second
time on the screen that included defendant Green’s photo.
When the record of an identification “is lacking in important details,”
and it was feasible to preserve them, Rule 3:11(d) affords a judge discretion,
consistent with appropriate case law, to bar the evidence, redact part of it,
29
and/or “fashion an appropriate jury charge” if the evidence is admitted. Under
the circumstances, we cannot find that the trial judge abused his discretion or
ruled in a manner that was inconsistent with appropriate case law when he
suppressed the identification.
We do not suggest that any time a full record of an identification is not
preserved, the evidence must be excluded. To be clear, we do not adopt a per
se rule to that effect. See Anthony, 237 N.J. at 239; Henderson, 208 N.J. at
303. Indeed, suppression should be the remedy of last resort, and judges should
explain why other remedies in Rule 3:11(d) are not adequate before barring
identification evidence. It is the confluence of factors in this appeal -- the
witness’s use of investigative mode during the identification process, the
failure to preserve all but one photo, and defendant’s history of multiple recent
arrests in Newark, which would have been captured in the HIDTA system the
witness viewed -- that casts doubt on the reliability of the identification
process and supports the trial court’s conclusion.
VII.
For the reasons outlined above, the judgment of the Appellate Division
is affirmed as modified.
30
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
and TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE
SOLOMON filed a separate opinion, concurring in part and dissenting in part.
31
State of New Jersey,
Plaintiff-Appellant/Cross-Respondent,
v.
Kwesi Green,
Defendant-Respondent/Cross-Appellant.
JUSTICE SOLOMON, concurring in part and dissenting in part.
I agree with the majority that there are several reasons why the
detective’s identification procedure was problematic. I also agree that the
identification record was “lacking in important details.” R. 3:11(d). However,
I cannot agree that the trial judge complied with Rule 3:11 and applicable case
law in suppressing the identification. Because this Court’s jurisprudence
makes clear that a remand is appropriate here, and not suppression of the
identification, I concur in the majority’s ruling but not in its remedy.
When the record of an identification “is lacking in important details,”
and it was feasible to preserve them, Rule 3:11(d) affords a judge discretion,
consistent with appropriate case law, to bar the evidence, redact part of it,
“and/or fashion an appropriate jury charge” if the evidence is admitted. With
that in mind, this Court has consistently rejected the invitation to “create[]
bright-line rules that call for the ‘suppression of reliable evidence any time a
1
law enforcement officer makes a mistake.’” State v. Anthony, 237 N.J. 213,
239 (2019) (quoting State v. Henderson, 208 N.J. 208, 303 (2011)). We have
done so for good reason; the threshold for suppression has always been high
and remains so today. See ibid.; see also Henderson, 208 N.J. at 303. Unless
a defendant “demonstrate[s] a very substantial likelihood of irreparable
misidentification,” Henderson, 208 N.J. at 289, it must be left “for the jury to
decide whether to credit a witness’ account, with the benefit of the augmented
model jury charge,” Anthony, 237 N.J. at 239. As such, remand hearings can
serve an important purpose -- to “probe what happened during the
identification process [] and end with evidence being excluded if it is
unreliable, and admitted otherwise.” Ibid.
Here, the trial court did not address the full range of possible remedies;
it discussed only whether the evidence should be suppressed. In doing so, the
court also did not measure the evidence in the record against the prevailing
legal standard: whether defendant Kwesi Green had shown a “very substantial
likelihood of irreparable misidentification” under the circumstances. See
Henderson, 208 N.J. at 289. Because a trial court must make that
determination before deciding whether the high threshold for suppression has
been vaulted, I would affirm the Appellate Division and remand to the trial
court to “probe what happened during the identification process” and
2
meaningfully assess the identification’s reliability. Anthony, 237 N.J. at 239.
In my view, suppression of the identification, particularly in light of the trial
court’s limited findings here, may preclude the jury from performing its
function.
3