State v. Brandon M. Washington

• Court: Supreme Court of New Jersey
• Decided: January 8, 2024
• Docket: A-29-22
• Status: Published

Opinion

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 and may not summarize all portions of the opinion.

State v. Brandon M. Washington (A-29-22) (087477)

Argued September 26, 2023 -- Decided January 8, 2024

RABNER, C.J., writing for a unanimous Court.

In this appeal, the Court considers whether the safeguards relating to eyewitness identification evidence set forth in State v. Henderson, 208 N.J. 208 (2011), should apply when lawyers meet with witnesses to prepare for trial.

Defendant Brandon Washington was forcibly removed from a “Ladies Night” event after an argument with a security guard. Seconds later, someone fired shots into the event venue, striking two people. After an investigation, defendant was charged with two counts of attempted murder.

During the initial investigation, several witnesses selected defendant’s picture from a photo array. Later, during trial preparation, an assistant prosecutor showed witnesses the array they had seen before or a single photo of defendant from Facebook. The witnesses later identified defendant in court. One did so for the first time at trial.

Through questioning at trial, it emerged that the witnesses had been shown photographs of defendant. Defense counsel requested a Rule 104 hearing to develop a record as to what was shown to witnesses during trial preparation. The court held a hearing only as to a single witness whose name had not been included on the State’s witness list, and the court declined to expand that hearing beyond whether the witness should be permitted to testify.

The jury convicted defendant of a lesser included offense -- attempted passion provocation manslaughter -- on both counts. Defendant appealed, and the Appellate Division affirmed his conviction. The Court granted defendant’s petition for certification “limited to the issues concerning the prosecutor showing witnesses photos of defendant during pretrial preparations.” 253 N.J. 186, 186-87 (2023).

HELD: Finding no reason to treat impermissibly suggestive events during trial preparation differently from other suggestive identification procedures, the Court extends the relevant principles in Henderson to trial preparation sessions. Witnesses 1 who have made a prior identification should not be shown photos of the defendant during trial preparation -- neither new photos of the defendant for the first time nor, absent good reason, the same photos they previously reviewed. If a party can demonstrate a good reason to show witnesses a photo of the defendant they previously identified, the party must prepare and disclose a written record of what occurred. If, however, a witness has not previously identified a suspect, investigators can conduct an identification procedure during pretrial preparation in accordance with Henderson. A record of the procedure should be created and disclosed under Rule 3:11. Here, to determine the admissibility of the identification evidence, the Court remands to the trial court to conduct a hearing under United States v. Wade, 388 U.S. 218 (1967), and develop a more complete factual record.

1. Suggestive identification procedures may so irreparably taint out-of-court and in- court identifications that a defendant is denied due process. Henderson, 208 N.J. at 285. It is the likelihood of misidentification which violates a defendant’s right to due process. Those due process concerns logically apply to suggestive identification procedures that take place early in an investigation as well as later on during trial preparation. The Court therefore considers whether the principles of Henderson extend to pretrial preparation. The Court observed in Henderson “that the possibility of mistaken identification is real” and “that eyewitness misidentification is the leading cause of wrongful convictions across the country.” Id. at 218. The opinion identified a series of variables and their possible effect on the reliability of identification evidence. Id. at 248-72. Among other factors, Henderson addressed the effect of multiple viewings of a suspect, the use of showups, confirmatory feedback, blind administration, and memory decay. (pp. 16-18)

2. Multiple viewings of mugshots “can create a risk of ‘mugshot exposure’ and ‘mugshot commitment.’” Id. at 255. 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.” Ibid. Of greater significance for this case, mugshot commitment takes place when a witness identifies a single photo that is later included in a lineup. Id. at 256. In both instances, studies show that witnesses are affected by repeated viewings of a suspect. Mugshot commitment and exposure thus “can affect the reliability of [a] witness’ ultimate identification and create a greater risk of misidentification.” Ibid. As a result, the Court observed that “law enforcement officials should attempt to shield witnesses from viewing suspects or fillers more than once.” Ibid. Showups are highly suggestive because the victim can only choose from one person. Although showups can serve a valuable purpose if conducted within hours of a crime, studies underscore the heightened risk of misidentification when a showup is conducted more than two hours after an event. Confirmatory feedback occurs when law enforcement officials “signal to eyewitnesses that they correctly identified the suspect.” Id. at 253. According to social science research, “[c]onfirmatory feedback 2 can distort memory.” Id. at 254. Concerns about feedback also relate to the person administering the identification procedure. Ideally, the administrator should “not know who the suspect is,” or not know where the suspect appears in a lineup or photo array, to avoid influencing the witness intentionally or unintentionally. Id. at 248-49. That concept is referred to as “blind administration.” Id. at 248. Henderson also made note of a straightforward principle -- that “[m]emories fade with time.” Id. at 267. “[T]he more time that passes, the greater the possibility that a witness’s memory of a perpetrator will weaken.” Ibid. (pp. 18-22)

3. There is limited case law about witnesses being shown photos of defendants during trial preparation. Two decisions from New Jersey courts have referred to the display of photos during pretrial preparation sessions, but only in passing, and the Court reviews the handful of cases from other jurisdictions that have more squarely addressed the display of photos during trial preparation. (pp. 22-29)

4. Against the background of Henderson and persuasive case law, the Court finds no reason to treat impermissibly suggestive identification events during pretrial preparation differently than other identification procedures. That conclusion has practical consequences. First, as a general, overarching rule, witnesses who have already made an identification should not be shown any photos of the defendant during trial preparation. 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 Wade hearing. Henderson, 208 N.J. at 288. Defendants who can “show[] some evidence of suggestiveness that could lead to a mistaken identification” will be entitled to a pretrial hearing. Ibid. Today’s ruling and guidance apply to this and future cases only. (pp. 30-33)

5. The Attorney General argues that photographs should generally not be shown “during trial preparation unless there is a good reason to do so.” The Court does not rule out the possibility that there may be compelling reasons in certain cases to show witnesses photos they previously selected. But the Court does not view the examples cited by the Attorney General to rise to that level. (pp. 33-35)

6. The Court provides guidance about how to balance the State’s important responsibility to prepare witnesses with the need to avoid unduly suggestive identification procedures. For example, prosecutors can ask witnesses about past identifications -- without confirming that the witness identified the defendant in the earlier identification -- or make video recordings of the identification procedure and then attempt to authenticate the video. If requested by a party, trial judges can 3 instruct the jury that court procedures caution against showing witnesses photos they have previously selected. The Court asks the Model Jury Charge Committee to develop an appropriate charge on that topic, as well as a general model charge on witness pretrial preparation. Although the Court cautions against it, if prosecutors or investigators show witnesses the same or new photos of a defendant during trial preparation, under the belief there is good reason to do so, they must create a contemporaneous, written record of what occurred and disclose it to the defense. The Court does not require an electronic recording to be made when a witness who previously made an identification is shown the same or new photos of a defendant. However, when an identification procedure is conducted during trial preparation with a witness who did not previously make an identification, the procedure should be recorded electronically consistent with Rule 3:11. The Court asks the Criminal Practice Committee to revise Rule 3:11 to comport with the principles announced in this decision. Based on what occurred during trial preparation, defendants may seek a pretrial hearing to determine whether a witness’s identification evidence will be admitted at trial. Practices during trial preparation that run afoul of the Court’s guidance in this decision would weigh against admitting the evidence. (pp. 35-38)

7. The trial preparation sessions at issue in this case did not accord with the principles set forth in today’s decision because the State showed photos of defendant to witnesses during trial preparation and did not disclose that information at the time. Without knowing what took place, defense counsel was not in a position to ask for a Wade hearing prior to trial. On two occasions, defense counsel asked for a testimonial hearing in the middle of trial, but the trial court declined to conduct the full hearings sought. Because it is not entirely clear from the record who saw which photos, and when they saw them, the Court remands to the trial court to develop a factual record and conduct a Wade hearing. Based on the outcome of the hearing, the trial court should determine, witness by witness, whether the testimony should have been admitted and whether a new trial is warranted. The Court offers no view on the outcome of the hearing. If the court decides that a new trial is required, defendant’s conviction should be vacated and a new trial date set. (pp. 38-40)

REMANDED to the trial court.

JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, FASCIALE, and NORIEGA join in CHIEF JUSTICE RABNER’s opinion.

4 SUPREME COURT OF NEW JERSEY A-29 September Term 2022 087477

State of New Jersey,

Plaintiff-Respondent,

v.

Brandon M. Washington,

Defendant-Appellant.

On certification to the Superior Court, Appellate Division .

Argued Decided September 26, 2023 January 8, 2024

Robin Kay Lord argued the cause for appellant (Law Offices of Robin Kay Lord, attorneys; Robin Kay Lord and Monika Mastellone, on the briefs).

Nicole Handy, Assistant Prosecutor, argued the cause for respondent (LaChia L. Bradshaw, Burlington County Prosecutor, attorney; Nicole Handy, of counsel and on the briefs).

Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).

Adam D. Klein, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Lauren

1 Bonfiglio, Deputy Attorney General, of counsel and on the brief).

Ian S. Marx argued the cause for amici curiae American Civil Liberties Union of New Jersey and The Innocence Project (Greenberg Traurig, American Civil Liberties Union of New Jersey Foundation, and The Innocence Project, Inc., attorneys; Ian S. Marx, Karen Thompson, Alexander Shalom, Caroline J. Heller (Greenberg Traurig) of the New York bar, admitted pro hac vice, Elliot H. Scherker and Brigid F. Cech Samole (Greenberg Traurig) of the Florida bar, admitted pro hac vice, Kara E. Angeletti (Greenberg Traurig) of the Illinois bar, admitted pro hac vice, Maxwell C. Fabricant (The Innocence Project, Inc.) of the New York bar, admitted pro hac vice, and Anton Robinson (The Innocence Project, Inc.) of the New York and Florida bars, admitted pro hac vice, on the brief).

CJ Griffin submitted a brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Emeka Nkwuo submitted a brief on behalf of amicus curiae New Jersey Association for Justice (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Emeka Nkwuo, of counsel and on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this appeal, we consider whether certain safeguards relating to

eyewitness identification evidence should apply when lawyers meet with

witnesses to prepare for trial.

2 It is well-settled that suggestive identification procedures can distort a

witness’s memory and lead to misidentifications. State v. Henderson, 208 N.J.

208, 218 (2011). In Henderson, the Court reviewed a series of variables that

can affect the reliability of identification evidence. Id. at 248-72. The opinion

did so in the context of the investigative phase of a criminal case.

Certain suggestive practices, however -- like showing a witness a photo

of a suspect multiple times, showing the witness only a single photo of a

suspect, or offering confirmatory feedback -- can lead to unreliable and

mistaken identifications whether they are done early in an investigation or later

on during trial preparation. Other variables including memory decay relate to

later events as well. Because we see no reason to treat impermissibly

suggestive events during trial preparation differently from other suggestive

identification procedures, we extend the relevant principles in Henderson to

trial preparation sessions.

As a result, we hold that witnesses who have made a prior identification

should not be shown photos of the defendant during trial preparation -- neither

new photos of the defendant for the first time nor, absent good reason, the

same photos they previously reviewed. As is true during an investigation, both

practices have the potential to distort a witness’s memory of the actual events

and undermine the reliability of a later identification.

3 If a party can demonstrate a good reason to show witnesses a photo of

the defendant they previously identified, the party must prepare and disclose a

written record of what occurred. Although we are not persuaded the examples

the State has offered to date can qualify as good reasons, we do not rule out

that possibility altogether.

If, however, a witness has not previously identified a suspect,

investigators can conduct an identification procedure during pretrial

preparation in accordance with Henderson. A record of the procedure should

be created and disclosed under Rule 3:11.

The central question in this trial for attempted murder was the identity of

the shooter. During trial preparation, the prosecution showed certain witnesses

the photo array they had previously viewed with defendant’s picture in it;

others were shown a single photo of defendant. No contemporaneous record

was made in either situation. Afterward, multiple witnesses identified

defendant at trial.

Because it is not entirely clear from the record which witnesses saw

which photos and when they saw them, and because no hearings were held

under United States v. Wade, 388 U.S. 218 (1967), to determine the

admissibility of the identification evidence, we remand to the trial court to

conduct a hearing and develop a more complete factual record. Based on the

4 outcome of the hearing, the court should determine whether each witness’s

testimony should have been admitted and whether a new trial is warranted.

I.

We draw the following facts from the record of defendant’s trial.

A.

The Veterans of Foreign Wars (VFW) lodge in Willingboro hosted a

“Ladies Night” event on February 16, 2017. About 150 people attended.

Before they could enter the hall, they had to sign in, show identification, and

submit to a security check.

Mark Peterson worked at the front desk that evening and recalled that

defendant Brandon Washington entered the hall between 9:30 and 10:00 p.m.

Two hours later, a security guard, William Matthews, approached defendant as

he leaned against a wall and blocked the entrance to the bar area. Matthews

recognized defendant because he had seen him at the VFW hall four or five

times before. Matthews asked him to move. Defendant responded, “back the

f--- up off of me.”

The bar manager, Timothy Scott III, saw the interaction, approached

defendant, and asked if he could speak with him. Defendant responded, “I

ain’t going no f------ where” and chest bumped Scott III. Matthews then

5 placed defendant in a chokehold, maneuvered him out the front door, and

reentered the hall.

Seconds later, the front door swung open. Someone stood in the

doorway, pointed a gun into the hall, and started shooting. One bullet struck

Matthews near his ear. He fell backwards and knocked Peterson down in the

process. Another bullet struck Peterson in the arm. After firing three or four

times, the shooter ran out through the front door.

The police arrived within minutes and rendered first aid to Matthews and

Peterson. Scott III showed an officer a photo he had on his cell phone of

defendant and a second person. Scott III said he received the photo from

Victoria Hendrix, who tended bar that evening and received the photo from

another employee. Scott III also relayed that he had shown the photo to his

father, Timothy Scott Jr., who worked the sign-in desk that night.

On May 25, 2017, a grand jury in Burlington County returned an

indictment that charged defendant with two counts of attempted murder. After

multiple adjournments, defendant’s trial began on February 7, 2019.

Defendant did not move for a hearing to challenge any out-of-court

identifications before the start of trial.

6 B.

This appeal centers around photos of defendant that witnesses viewed

during pretrial preparation. Our focus, as a result, is on the identification

evidence in the case.

During the initial investigation, several witnesses selected defendant’s

picture from a photo array. Later, during trial preparation, an assistant

prosecutor showed witnesses the array they had seen before or a single photo

of defendant from Facebook. The single photo depicted defendant wearing an

“Evel Knievel” jacket with red, white, and blue sleeves, and a pair of glasses. 1

The witnesses later identified defendant in court. One did so for the first time

at trial.

For example, Peterson, who worked at the front desk, testified that he

saw defendant being removed from the hall and then watched him pull a gun

and fire into the building. Hours later, while being treated at the hospital for a

bullet wound, Peterson identified defendant’s picture from an array of six

photographs. Peterson also testified that he had seen defendant at the VFW

hall before.

1 Certain witnesses also viewed a different Facebook photo on the night of the shooting. As noted earlier, witnesses shared the photo among themselves shortly after the shooting. The photo depicted defendant wearing a white jacket and white slacks; a second individual is depicted beside him. 7 On cross-examination, Peterson said he met with the assistant prosecutor

about five times before trial. On one or two of those occasions, he reviewed

the photo array again. Peterson later identified defendant at trial.

Matthews, the security guard, testified that he had seen defendant at the

hall four or five times before, roughly once every two months. Matthews said

defendant wore either a “black furry jacket” or a red, white, and blue jacket

“like . . . Evel Knievel” to the hall the night of the shooting -- the jackets he

had worn before. Matthews did not identify defendant prior to trial or during

direct-, cross-, or redirect-examination.

Immediately before cross-examination, defense counsel asked for a Rule

104 “hearing with witnesses” to determine “what happened during the pretrial

prep of this witness.” Counsel explained that in Matthews’ initial statement to

the police, he mentioned a “blue, red and white . . . sweat jacket . . . hoodie

type style,” but not a black fur coat. Counsel argued the defense was entitled

to know what, if any, photographs had been shown to the witness during trial

preparation.

In response, the assistant prosecutor represented that after Matthews

described the red, white, and blue jacket at a pretrial meeting, he showed

Matthews the Facebook photo of defendant “wearing the jacket.” The

8 prosecutor added, “[w]e didn’t ask him” to identify the person in the photo

because “[h]e cannot identify the person who shot him.”

Defense counsel then reiterated her request for a hearing to develop “a

record as to what was shown” to the witness. Counsel argued that “[w]hen an

eyewitness is prepped by a prosecut[or],” and a photo identification is

conducted, the State is required to disclose the details of what took place. She

specifically asked to question Detective Brian Miller, who was present for the

prep session. The trial court declined to conduct a hearing and instead directed

the prosecution to identify which photos it had shown the witness.

On cross-examination, Matthews said he had met with the prosecution

team three times before trial. When confronted with the Facebook photo of

defendant wearing a red, white, and blue jacket, he stated, “I didn’t see that

picture” and “I don’t recall seeing that picture.” In front of the jury, the

prosecution stipulated that it had shown Matthews the photo.

During re-cross examination, Matthews identified defendant as the

shooter for the first time. He stated, “I’m looking at him closely, clearly now.

That’s the man that shot me right there, ma’am.” He said he had not identified

defendant before “[b]ecause that question never came up.”

Scott III, the bar manager, also testified. Beforehand, defense counsel

moved to prevent him from testifying because his name was not on the State’s

9 witness list. The State maintained the omission was an oversight and

emphasized that Scott III’s name was mentioned throughout the discovery it

had provided the defense.

The trial court conducted a Rule 104 hearing mid-trial. During the

hearing, Scott III testified about what he observed and what he did on the night

of the shooting. Among other things, he identified a Facebook photo of

defendant wearing white that Scott III saw right after the shooting. He also

identified defendant, who was present in court, as the shooter.

Defendant then argued that Scott III should not be allowed to testify at

trial on account of surprise and because of the taint from his having seen the

Facebook photo. Counsel specifically sought to prevent Scott III from offering

any identification evidence at trial. Counsel also asked to question Hendrix,

who sent the Facebook photo to Scott III.

The trial court declined to broaden the scope of the hearing. Although

the court noted “this is not a Wade hearing” “in the traditional sense,” it

reviewed certain relevant factors under the case law. In particular, the court

found that Scott III “had sufficient opportunity to view the incident,” “his

degree of attention . . . was exceptional,” and he had a high level of certainty

about the identification. The court concluded he could testify before the jury.

10 Scott III told the jury he saw defendant enter the bar and interacted with

him. More than an hour later, he tried to diffuse the situation between

Matthews and defendant and ultimately told defendant he had to leave. After

Matthews removed defendant, Scott III saw him return and point a gun in his --

Scott III’s -- direction.

Before the police arrived, Scott III said he saw the Facebook photo of

defendant dressed in white and recognized him as the shooter. He later

showed the photo to his father and the police.

Scott III met with the prosecutor about three times to prepare for trial.

He was shown a single photo of defendant at the time, but it is unclear which

photo he viewed. At trial, Scott III identified defendant in court and said he

had no doubt defendant was the shooter.

Scott Jr., who worked at the sign-in desk, testified that he saw defendant

enter the hall. He later told Matthews to ask defendant to move and then

watched the ensuing confrontation among defendant, Matthews, and Scott III.

Soon after defendant was taken out of the hall, Scott Jr. heard shots but did not

see who fired them.

Scott Jr. testified that someone showed him a photo of “the shooter” at

the bar, and he glanced at it. He could not recall what it looked like. Hours

later, the police showed him an array of six photos, and he identified defendant

11 as the shooter. During trial preparation, the prosecutor showed Scott Jr. the

same array he had viewed before. At trial, Scott Jr. identified defendant as the

shooter.

Victoria Hendrix, a bartender at the hall, testified that she saw Scott III

confront defendant and watched him get thrown out of the hall. “He came

right back,” according to Hendrix, and “open[ed] fire.” She testified he had

been at the bar before “enough times to remember who he was.”

Hendrix said that she did not recall receiving, viewing, or sending the

Facebook photo of defendant dressed in white on the night of the shooting.

She identified him from a photo array hours after the shooting.

Hendrix spoke with the prosecutor twice prior to trial. She did not recall

whether she was shown photos of defendant during those meetings.

When asked to identify the shooter at trial, she first said she did not see

him in the courtroom. Soon after, the prosecutor showed Hendrix the photo

array she had previously viewed. She examined each picture and confirmed

that the shooter was depicted in the photo of defendant she had previously

selected. Immediately afterward, on her own, she said she “wanted to go back

to the question” whether she saw “the suspect in this room.” She then

identified defendant. Hendrix explained that she could not do so earlier

12 because “[h]e looks different today; “[h]e has a full head of hair today,” unlike

before, and “[h]is beard is gone.”

Among other evidence at trial, the State introduced a pair of non-

prescription Chanel glasses, with a black frame, found on a table near the

doorway to the bar. The State Police laboratory tested a small amount of DNA

found on the glasses and found “a mixture of DNA profiles consistent with at

least two contributors.” Defendant was “identified as the source of the major

DNA profile obtained.” “[N]o comparisons could be made to” the minor

profile.

C.

The jury convicted defendant of a lesser included offense -- attempted

passion provocation manslaughter -- on both counts. The trial judge sentenced

him to two consecutive terms of ten years’ imprisonment, subject to an 85

percent period of parole ineligibility.

Defendant appealed, and the Appellate Division affirmed his conviction.

Defendant raised seven issues, only one of which is relevant now: his

challenge to “identification issues at trial.”

The appellate court first addressed whether the circulation of defendant’s

Facebook photo among potential witnesses on the night of the shooting entitled

him to a pretrial hearing. The court found, as to Scott III, that defendant

13 essentially was provided with a hearing under Wade and State v. Chen, 208

N.J. 307 (2011), and did not request a hearing for the other witnesses. In

addition, the court noted that defendant could not meet the threshold showing

for a hearing under Chen -- that the witnesses viewed the photo under “highly

suggestive circumstances.” See 208 N.J. at 327.

Next, the Appellate Division considered the identification claim before

this Court -- that the prosecutor’s pretrial preparation sessions with witnesses

tainted their in-court identifications. The court rejected the claim as to

Matthews, who identified defendant at trial in response to a question from

defense counsel. The court observed that “the argument has some merit” as to

the other witnesses but chose “not to decide whether . . . showing a photograph

of defendant or a photographic array that included a previously identified

photo of defendant must be recorded pursuant to Rule 3:11(a).” The Appellate

Division noted that defendant did not seek a hearing and failed “to create a

more expansive, detailed record in this case.” 2

The Appellate Division denied defendant’s motion for reconsideration.

2 The Appellate Division remanded to the trial court to consider the overall fairness of defendant’s consecutive sentences on multiple offenses, pursuant to State v. Torres, 246 N.J. 246, 268 (2021). Today’s opinion does not affect that determination. 14 We granted defendant’s petition for certification “limited to the issues

concerning the prosecutor showing witnesses photos of defendant during

pretrial preparations.” 253 N.J. 186, 186-87 (2023). We also granted leave to

appear as friends of the court to the Attorney General, the Public Defender, the

New Jersey Association for Justice (NJAJ), the Association of Criminal

Defense Lawyers of New Jersey (ACDL), and the Innocence Project and

American Civil Liberties Union of New Jersey (ACLU), who submitted a joint

brief.

II.

Defendant argues that the prosecutor’s conduct during pretrial

preparation sessions violated his due process rights and warrants a new trial.

Defendant contends that showing witnesses photos of a defendant years after

an offense unreasonably risks altering a witness’s memory and should be

barred. When there is an extraordinary need to show a defendant’s photo

during a preparation session, defendant submits the process should be

electronically recorded.

The Public Defender, NJAJ, ACDL, and the Innocence Project and

ACLU support defendant’s position. In general, they submit that using a

defendant’s photograph during trial preparation is inherently suggestive and

should be prohibited. The NJAJ adds that any display of a defendant’s

15 photograph during pretrial preparation should be conducted in accordance with

the procedural safeguards of Henderson and the requirements of Rule 3:11.

The State argues that the Appellate Division properly concluded the

record is inadequate to decide whether defendant was prejudiced by some

witnesses viewing defendant’s photo during trial preparation. In any event, the

State submits that the display of the photos does not warrant reversal. In

addition, the State contends that witness preparation sessions in which a photo

of a defendant is shown need not be recorded under Rule 3:11.

The Attorney General as amicus submits that “prosecutors should

generally avoid showing witnesses previously identified photographs of

defendants during trial preparation without a good reason to do so.” In this

case, however, the Attorney General submits that the trial preparation sessions

did not taint the witnesses’ in-court identifications of defendant. The Attorney

General also maintains the prosecutor was not required to record the witnesses’

III.

Suggestive identification “procedures may ‘so irreparably “taint[]” . . .

out-of-court and in-court identifications’ that a defendant is denied due

process.” Henderson, 208 N.J. at 285 (alteration in original) (quoting State v.

Madison, 109 N.J. 223, 239 (1998)). “It is the likelihood of misidentification

16 which violates a defendant’s right to due process . . . .” Neil v. Biggers, 409

U.S. 188, 198 (1972). Those due process concerns logically apply to

suggestive identification procedures that take place early in an investigation as

well as later on during trial preparation.

Here, the State showed photos of defendant to witnesses during trial

preparation and did not disclose that information to the defense at the time. To

assess that practice and the likelihood of misidentification it may present, we

consider whether the principles of Henderson extend to pretrial preparation.

In Henderson, the Court evaluated various issues related to the

admissibility of eyewitness identification evidence. Based on an extensive

record developed before a Special Master, the Court observed “that the

possibility of mistaken identification is real” and “that eyewitness

misidentification is the leading cause of wrongful convictions across the

country.” 208 N.J. at 218.

Relying on scientific evidence presented at the hearing, the Court

concluded “that memory is malleable, and that an array of variables can affect

and dilute memory and lead to misidentifications.” Ibid. The opinion

identified a series of variables and their possible effect on the reliability of

identification evidence. Id. at 248-72. Among other factors, Henderson

addressed the effect of multiple viewings of a suspect, the use of showups,

17 confirmatory feedback, blind administration, and memory decay. Id. at 248-

50, 253-56, 259-61, 267.

A. Multiple Viewings

The Court in Henderson found that “[v]iewing a suspect more than once

during an investigation can affect the reliability of the later identification.” Id.

at 255. As the Special Master 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.” Ibid.

For example, multiple viewings of mugshots “can create a risk of

‘mugshot exposure’ and ‘mugshot commitment.’” Ibid. 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.” Ibid. Of greater significance for

this case, mugshot commitment takes place when a witness identifies a single

photo that is later included in a lineup. Id. at 256.

In both instances, studies show that witnesses are affected by repeated

viewings of a suspect. A mistaken identification from an initial procedure is

likely to be repeated when the same mistakenly identified suspect is included

in the second procedure. For example, a composite study revealed that 15

18 percent of witnesses misidentified an innocent person they viewed in a lineup

for the first time, yet 37 percent did so when they “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 Law &

Hum. Behav. 287, 299 (2006)).

Other “[s]tudies have shown that [when] 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 (third alteration in original) (citing 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)). In short,

“repeated procedures make certain that the suspect is identified more often, but

do not increase the likelihood that the identified suspect is actually guilty.”

Nancy K. Steblay & Jennifer E. Dysart, Repeated Eyewitness Identification

Procedures with the Same Suspect, 5 J. Applied Rsch. Memory & Cognition

284, 286 (2016).

Mugshot commitment and exposure thus “can affect the reliability of [a]

witness’ ultimate identification and create a greater risk of misidentification.”

Henderson, 208 N.J. at 256. As a result, the Court observed that “law

19 enforcement officials should attempt to shield witnesses from viewing suspects

or fillers more than once.” Ibid.

B. Showups

“Showups are essentially single-person lineups” in which “a single

suspect is presented to a witness to make an identification.” Id. at 259. As we

have observed several times, showups are highly suggestive “because the

victim can only choose from one person.” State v. Herrera, 187 N.J. 493, 504

(2006); see also State v. Watson, 254 N.J. 558, 579 (2023); Henderson, 208

N.J. at 261; Madison, 109 N.J. at 243.

Our case law recognizes that “[s]howups can serve a valuable purpose if

conducted within hours of a crime.” Watson, 254 N.J. at 579. But studies

underscore the “heightened risk of misidentification” when a showup is

“conducted more than two hours after an event.” Id. at 579-80 (quoting

Henderson, 208 N.J. at 261, and citing, for example, A. Daniel Yarmey et

al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 Law

& Hum. Behav. 459, 464 (1996)).

C. Confirmatory Feedback and Blind Administration

Confirmatory feedback occurs when law enforcement officials “signal to

eyewitnesses that they correctly identified the suspect.” Henderson, 208 N.J.

at 253. According to social science research, confirmatory feedback “can

20 reduce doubt,” “engender a false sense of confidence,” and “falsely enhance a

witness’ recollection of” their ability to view an event. Ibid. (discussing Amy

Bradfield Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A

Meta-Analysis of the Post-identification Feedback Effect, 20 Applied

Cognitive Psych. 859, 863-65 (2006)). “[T]hose effects can be lasting.” Ibid.

(citing Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback

and Age on Retrospective Eyewitness Memory, 19 Applied Cognitive Psych.

435, 449 (2005)).

In short, “[c]onfirmatory feedback can distort memory.” Id. at 254.

That is true for feedback from law enforcement officers as well as fellow

witnesses and other private actors and sources. Id. at 255, 268; Chen, 208 N.J.

at 310-11. In one study, one-third of students who watched an event and then

read a description that contained false details incorporated the false details

when they later described the suspect. Henderson, 208 N.J. at 268-69 (citing

Elizabeth F. Loftus & Edith Greene, Warning: Even Memory for Faces May

Be Contagious, 4 Law & Hum. Behav. 323, 328 (1980), among other studies).

Concerns about feedback also relate to the person administering the

identification procedure. Ideally, the administrator should “not know who the

suspect is,” or not know where the suspect appears in a lineup or photo array,

to avoid influencing the witness intentionally or unintentionally. Id. at 248-49.

21 That concept is referred to as “blind administration.” Id. at 248. Of course,

when a prosecutor or investigator assigned to a case is involved in an

identification procedure during trial preparation, blind administration is not

possible.

D. Memory Decay

The Court in Henderson also made note of a straightforward principle --

that “[m]emories fade with time.” Id. at 267. “[T]he more time that passes,

the greater the possibility that a witness’s memory of a perpetrator will

weaken.” Ibid. (citing Kenneth A. Deffenbacher et al., Forgetting the Once-

Seen Face: Estimating the Strength of an Eyewitness’s Memory

Representation, 14 J. Experimental Psych.: Applied 139, 142 (2008); Carol

Krafka & Steven Penrod, Reinstatement of Context in a Field Experiment on

Eyewitness Identification, 49 J. Personality & Soc. Psych. 58, 65 (1985)).

IV.

There is limited case law about witnesses being shown photos of

defendants during trial preparation.

Two decisions from New Jersey courts have referred to the display of

photos during pretrial preparation sessions, but only in passing. State v.

Guerino involved an armed robbery in which an employee was injured. 464

22 N.J. Super. 589, 595 (App. Div. 2020). The case largely hinged on the

identification of the robber. Ibid. Shortly after the robbery, the employee

identified the defendant from a photo array. Id. at 599. About twenty months

later, and two weeks before trial, a member of the prosecution team asked the

victim to come to the courthouse. Id. at 600. She sat outside a courtroom with

a detective and “observed a line of six or seven inmates walking in the

corridor.” Id. at 601. The victim “recognized one of the inmates” -- the

defendant -- “as the robber.” Ibid.

Following the defendant’s conviction, the Appellate Division

“remand[ed] the case for the trial court to convene a Wade-Henderson hearing

to more closely examine the circumstances and impact of the unusual live

lineup conducted in a courthouse corridor.” Id. at 596-97. In its discussion of

the identification, the court distinguished “the hallway event” -- which it found

“was essentially a new identification procedure” -- from trial preparation. Id.

at 615. The court observed, “this was not a situation where the prosecutor met

with the victim shortly before trial to refresh her recollection of her prior

statements and the selection she made and confidence level she expressed

during the photo array procedure.” Ibid.

Last term in Watson, this Court held “that first-time in-court

identifications may only be conducted when there is good reason for them”

23 because of “[t]he inherently suggestive nature of the procedure.” 254 N.J. at

568; see also State v. Burney, 255 N.J. 1, 26 (2023). In addition, the Court

directed that “prosecutors must disclose in writing anything discussed with a

witness during trial preparation that relates to an upcoming in-court

identification.” Watson, 254 N.J. at 588. By way of example, the opinion

added that “if witnesses during trial preparation are shown photos they had

previously viewed at prior out-of-court identifications, that must be disclosed

as well.” Ibid. (citing Henderson 208 N.J. at 255-56 (discussing multiple

viewings of a suspect)). Watson did not consider the issue further.

B.

A handful of cases from other jurisdictions have more squarely

addressed the display of photos during trial preparation.

The New York Court of Appeals thoughtfully considered the issue in

People v. Marshall, 45 N.E.3d 954 (N.Y. 2015). In that appeal, the Court

expressly rejected a “trial-preparation exception.” Id. at 961-62.

The case arose out of an assault on a city bus. Id. at 957. Two months

after the incident, the victim told police she saw the defendant at a hospital and

recognized her. Ibid. Another sixteen months later, the prosecutor showed the

victim an arrest photo of the defendant. Ibid.

24 At a court hearing the next day, the prosecutor told the court and defense

counsel that he had shown the photo “as part of trial preparation” to help him

better understand the victim’s description of the defendant’s hairstyle. Ibid.

The defendant, in turn, asked for a Wade hearing. Ibid. The court denied a

request to call the assistant district attorney but heard testimony from the

victim. Ibid. She said she had only glanced at the blurry photo; on cross-

examination, she said she had not seen it. Id. at 957-58. The victim later

identified the defendant at a bench trial. Id. at 958. She was convicted of

attempted assault and related offenses. Id. at 959.

The Court of Appeals rejected the argument that because the photo had

been displayed as part of trial preparation, the defendant could not challenge

the procedure under state law. Id. at 961-62 (citing N.Y. Crim. Proc. §

710.30). As the Court explained,

[t]he concern that a pretrial identification will result in witness error is the same regardless of the People’s motive. Whether the procedure is intended to refresh or anchor the identification of defendant in the witness’s memory before trial, or intended to assist the ADA in preparing the case, the relevant inquiry remains the same: was the observation of defendant unduly suggestive, rendering the subsequent identification unreliable.

....

We can find no basis to maintain a distinction between viewings of a defendant’s image in preparation for trial 25 and any other out-of-court identifications. Both expose a witness to defendant’s likeness, with the potential risk for undue suggestiveness.

[Id. at 962.]

A divided Court, however, found that the failure to conduct a full Wade

hearing was harmless in light of the victim’s prior identification of the

defendant at the hospital. Id. at 963 (majority opinion), 967 (Lippman, C.J.,

dissenting).

The D.C. Circuit has also wrestled with the subject on multiple

occasions, some of which either preceded or did not consider scientific

evidence related to eyewitness identification. In United States v. Gambrill,

decided in 1971, a rape victim selected two people out of a seven-person

lineup conducted one week after the crime. 449 F.2d 1148, 1151 (D.C. Cir.

1971). Police included both individuals charged with her rape in the lineup --

defendants Gambrill and Hunter. Ibid. The victim picked out Hunter and an

individual “other than Gambrill as the two men who most ‘reminded’ her of

her assailants.” Ibid.

Several months later, during a conference at the United States Attorney’s

office, a police officer showed the victim two colored photos of Gambrill and

Hunter. Ibid. The Assistant U.S. Attorney “was otherwise engaged” when the

photos were shown. Id. at 1152. The victim “couldn’t be sure” either man had

26 raped her. Id. at 1157. Six months later, at a suppression hearing, she

identified both men, sitting at counsel table, as her assailants. Ibid. Before

testifying at trial two days later, the Assistant U.S. Attorney “showed her the

two colored pictures again and she saw a photograph of a lineup which

included both suspects.” Id. at 1157-58. She identified both defendants at

trial.

The D.C. Circuit found that showing the colored photos was

impermissibly suggestive. Id. at 1153. The court observed that the victim

“knew” the photos depicted the two men who had been charged in the case and

were awaiting trial. Ibid. In addition, the victim was shown the photos while

“present in the Assistant U.S. Attorney’s office . . . to prepare for that trial.”

Ibid. Under the totality of the circumstances, the court could not find “that the

identification procedures . . . used . . . were not so impermissibly suggestive as

to give rise to a very substantial likelihood of irreparable misidentification.”

Id. at 1157; see also id. at 1153 (citing Simmons v. United States, 390 U.S.

377, 384 (1968)).3 The Circuit Court therefore reversed the defendants’

convictions. Id. at 1159.

3 Henderson revised the framework to obtain a pretrial hearing but not the ultimate burden on a defendant. Defendants are now entitled to a hearing if they can “show[] some evidence of suggestiveness that could lead to a mistaken identification.” Henderson, 208 N.J. at 288. Generally, that evidence must be tied to a system variable -- one within the State’s control. 27 Four years later, in United States v. Marshall, the D.C. Circuit rejected a

claim that it was improper for the government to show a victim a photo of the

defendant “shortly before her in-court identification of him.” 511 F.2d 1308,

1311 (D.C. Cir. 1975). With little additional analysis, the court observed “this

was the same picture that the victim had previously selected when [the

defendant] was initially identified by her.” Ibid.

The Circuit returned to the issue in United States v. Thompson, 27 F.3d

671 (D.C. Cir. 1994). In that case, the court upheld a conviction in which

police officers viewed the defendant’s arrest photo during trial preparation. Id.

at 672. Two undercover officers had purchased $20 of cocaine base from the

defendant. Id. at 673. Minutes later, the officers drove past the defendant and

one of the officers identified him. Ibid. Prior to trial, the government showed

both officers the defendant’s arrest photo while preparing them for their

testimony. Ibid. One officer admitted on cross-examination that she was not

shown any other photos; the other officer “was not asked for the surrounding

details.” Ibid. Both officers identified the defendant at trial. Ibid.

Id. at 288-89. “The State must then offer proof to show that the proffered eyewitness identification is reliable -- accounting for” variables within its control and others that are not. Id. at 289. Henderson did not alter the defendant’s ultimate burden: “to prove a very substantial likelihood of irreparable misidentification.” Ibid. (citing Manson v. Brathwaite, 432 U.S. 98, 116 (1977), citing, in turn, Simmons, 390 U.S. at 384). 28 Citing its prior ruling in Marshall, the court found nothing wrong with

“showing . . . a witness a photograph to refresh her recollection.” Ibid. It

noted the “technique may well make [a] witness seem more confident when

she identifies the defendant in court” but added that “the same can be said of

every technique used to refresh a witness’s recollection during pre-trial

preparations.” Ibid. In any event, the court observed that viewing the photo

“carried no significant risk of causing any misidentification” in light of the

officer’s drive-by identification. Id. at 673-74.

More recently, the Court of Appeals for the District of Columbia

reversed a conviction because of what occurred during pretrial preparation:

the prosecutor showed the key witness, a police officer, a mugshot of the

defendant on the eve of trial. Morales v. United States, 248 A.3d 161, 166-67

(D.C. 2021). The officer had “only fleetingly” seen the defendant four months

earlier and had not made a prior identification. Ibid. The assistant “prosecutor

explained that she ‘was just preparing for trial.’” Id. at 174. The court found

the procedure was “beyond suggestive,” id. at 167, and that the in-court

identification was unreliable, id. at 180.

Against that background, we consider whether and how the principles

discussed in Henderson apply to pretrial preparation sessions.

29 A.

To be sure, Henderson did not directly address witness preparation

sessions before trial. The case involved an allegedly suggestive identification

procedure conducted two weeks after the offense had been committed.

Henderson, 208 N.J. at 222-24.

As part of its analysis, the Court reviewed an extensive evidentiary

record about how human memory works and how it can be affected and

distorted by different variables. Nothing in the opinion or the record before

the Court suggested that those principles applied only to the investigative

phase of a criminal case. In fact, a number of variables, like memory decay,

confirmatory feedback, and multiple viewings of a suspect, readily relate to

later events.

Likewise, issues about human memory discussed in Henderson did not

turn on why prosecutors or law enforcement officials conducted a particular

identification procedure. See Marshall, 45 N.E.3d at 962; Guerino, 464 N.J.

Super. at 615. The Court instead focused on how suggestive procedures can

distort a witness’s memory and result in unreliable identifications. And unduly

suggestive procedures can lead to misidentifications and invoke due process

concerns whether they are conducted in the initial stage of an investigation or

during trial preparation sessions.

30 We therefore see no reason to treat impermissibly suggestive

identification events during pretrial preparation differently than other

identification procedures. See Marshall, 45 N.E.3d at 962; see also Guerino,

464 N.J. Super. at 614-15. That conclusion has practical consequences.

First, as a general, overarching rule, witnesses who have already made

an identification should not be shown any photos of the defendant during trial

In most cases, witnesses who meet with prosecutors and investigators to

prepare for trial have already identified or attempted to identify a suspect .

Many have previously viewed a photo array, a live lineup, or a showup. Any

witness who has made a prior identification should not be shown new or

different photos of the defendant during prep sessions. That applies to the

display of a single photo of the defendant or groups of photos that include the

defendant.

Showing a witness during trial preparation a photo of a single person

which they have not seen before is like conducting a showup long after a

crime. It is tantamount to a new and suggestive identification procedure. See

Henderson, 208 N.J. at 255-56. Showing an array of photos that includes a

new photo of the defendant is likewise the equivalent of a new identification

procedure with an important difference: having seen a photo of the defendant

31 before, the repetition raises concerns about mugshot commitment. See ibid.

Both scenarios can affect the reliability of the later identification. Id. at 256.

But it is not just new photos that raise concerns. Witnesses should not

be shown the same photo or photos of a defendant they previously viewed

when they prepare for trial. The Attorney General advises that “responses . . .

from the County Prosecutor’s Offices surveyed reflect that it is not common

practice for prosecutors to show witnesses previously selected photographs of

the defendant or the entire array in preparing for trial, but it does sometimes

occur.” To the extent the practice exists, it should not be continued.

For reasons discussed earlier, the act of showing and then reshowing a

photo can affect and distort a person’s memory. Showing a single photo

multiple times presents a classic form of mugshot commitment. Id. at 256.

The practice is disfavored because it is difficult to know whether a witness

recalls the original event or the earlier identification procedure. Id. at 255.

The practice can also enhance the risk that a witness will affirm an earlier

mistaken identification. Id. at 255-56. The same is true when a witness is

shown multiple photos -- a photo array, for example -- a second time. Ibid.

Reshowing photos to a witness can also pose risks associated with

confirmatory feedback. When a witness is shown a photo or an array once

again during trial preparation, the implicit message is clear: “That’s the very

32 person you identified before.” The message can reduce doubt and create “a

false sense of confidence” when the witness later testifies about the prior

identification or is asked to identify the defendant at trial. See id. at 253

(citing studies).

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 shoul d

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 Wade hearing. Henderson, 208 N.J. at 288.

Defendants who can “show[] some evidence of suggestiveness that could lead

to a mistaken identification” will be entitled to a pretrial hearing. Ibid.

We apply today’s ruling and the above guidance to this and future cases

only.

The Attorney General’s position is similar in many respects. It

recognizes that “[p]rosecutors should not show a witness a photograph of the

defendant for the first time during trial preparation . . . when that witness can

33 reasonably be expected to make a courtroom identification of the defendant.”

The Attorney General also argues that “[p]rosecutors should generally avoid

showing witnesses previously selected photographs of the defendant during

trial preparation unless there is a good reason to do so.”

At oral argument, the Attorney General offered examples of what might

qualify as a “good reason.” We do not rule out the possibility that there may

be compelling reasons in certain cases to show witnesses photos they

previously selected. But we are not persuaded that the examples presented to

date rise to that level.

The need to prepare for trial or refresh a witness’s recollection, standing

alone, cannot serve as a good reason. Because prosecutors must prepare

witnesses for trial in every case, the exception would swallow the rule.

Similar concerns would arise if good reason were based on the amount

of time that has passed between the offense and the start of trial. Because

trials in criminal cases do not begin until many months, and often more than a

year, after a crime takes place, this exception would also upend the rule.

Beyond that, it could justify reshowing photos of the defendant to witnesses in

complex cases like homicides, where the time interval is often lengthy and the

stakes are the highest.

34 The Attorney General also suggested that photos could be shown again

when a witness knows the suspect reasonably well. But there is little need

during trial preparation to show a witness a photo of a good friend, a relative,

or a co-worker who is close to them. And when a relationship is more

attenuated -- for example, a customer who occasionally frequents a bar or a

bank -- suggestive practices raise heightened concerns.

A witness’s inability to recall on account of trauma, which has also been

raised as a potential good reason, poses a more fundamental problem. If

witnesses cannot recall a suspect during trial preparation or otherwise, they

should not be shown a photo of the person they previously selected to refresh

their memory. Under any measure, that would be unusually suggestive.

We recognize that prosecutors have an important duty to adequately

prepare for trial. In re Segal, 130 N.J. 468, 480 (1992). An unprepared

witness who stumbles on the stand can lead to a miscarriage of justice. With

that in mind, we consider how to balance the State’s important responsibility to

prepare witnesses with the need to avoid unduly suggestive identification

procedures.

One way is to remove just the suggestive aspects of identification

evidence from trial preparation sessions. In other words, prosecutors preparing

35 a witness for trial can address what happened months earlier -- when the

witness was first asked to identify a suspect -- without showing any photos the

witness previously reviewed or selected.

For example, prosecutors can ask witnesses whether they recall having

been shown a series of photos, making an identification, and signing and

dating a photo in an array. Witnesses can be asked how confident they were at

the time. They can be advised that the prosecutor may show them photos at

trial and ask if they can identify the suspect and confirm their signature. Such

exchanges would need to be disclosed in writing to defense counsel. See

Watson, 254 N.J. at 588.

In those and other ways, witnesses can be prepared without viewing any

photos they previously saw. To be clear, prosecutors may not in any way

confirm that the witness identified the defendant in the earlier identification.

Prosecutors and investigators also have the option to make a video

recording of the initial identification procedure. The witness could testify

about the prior identification and attempt to authenticate the video. See

N.J.R.E. 803(a)(3) (“[A] prior identification of a person made after perceiving

that person if made in circumstances precluding unfairness or unreliability” is

“not excluded by the hearsay rule.”).

36 If requested by a party, trial judges can instruct the jury that court

procedures caution against showing witnesses photos they have previously

selected. We note as well that New York has a general model charge on

witness pretrial preparation. CJI2d [NY] Witness Pre-trial Preparation

(accessible through the New York Courts portal, https://www.nycourts.gov/

judges/cji/1-General/cjigc.shtml). We ask the Model Jury Charge Committee

to develop appropriate charges on both topics.

We add a final point. Although we caution against it, if prosecutors or

investigators show witnesses the same or new photos of a defendant during

trial preparation, under the 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 R. 3:11; R. 3:13-3(b)(1)(J); see also State v. Anthony, 237

N.J. 213, 231, 233 (2019) (relying on the Court’s supervisory powers to

require that a record be made of identification procedures, now codified at

Rule 3:11). The written record should identify the location of the meeting,

who was present for it, and precisely which photos were shown to the witness.

It should also describe the dialogue between the prosecution team and the

witness, account for any non-verbal cues, and recount any statements the

witness made after seeing the photos. See R. 3:11(c).

37 Historically, trial preparation sessions between counsel and witnesses

have not been recorded by either side for various reasons. Consistent with that

practice, we do not now require an electronic recording to be made of trial

preparation sessions when a witness who previously made an identification is

shown the same or new photos of a defendant. However, as noted earlier,

when an identification procedure is conducted during trial preparation with a

witness who did not previously make an identification, the procedure should

be recorded electronically consistent with Rule 3:11. We ask the Criminal

Practice Committee to revise Rule 3:11 to comport with the above principles.

Based on what occurred during trial preparation, defendants may seek a

pretrial hearing to determine whether a witness’s identification evidence will

be admitted at trial. See Henderson, 208 N.J. at 288. Practices during trial

preparation that run afoul of the above guidance would weigh against

admitting the evidence.

VI.

We now apply the above principles to the facts of this case. We note that

the trial preparation sessions in question did not accord with the above

principles in that the State showed photos of defendant to witnesses during

trial preparation and did not disclose that information at the time.

38 Peterson, for example, identified defendant’s picture from a photo array

during the initial investigation. At one or two sessions with the prosecutor to

prepare for trial, he was shown the array again. It appears from the record

before us that the information was first revealed to the defense during

Peterson’s cross-examination.4

Matthews did not identify defendant before trial. Yet he was shown a

single photo of defendant during trial preparation. At oral argument, the State

confirmed the information was first disclosed in the middle of trial.

Scott III was shown a single photo of defendant during trial preparation,

but it is not clear in the record which photo he saw or when the information

was disclosed to the defense.

Scott Jr. identified defendant from a photo array shortly after the

shooting. During trial preparation, he was shown the array once again. It

appears that was first disclosed during his trial testimony.

Hendrix identified defendant from a photo array during the investigation.

She could not recall whether she was shown photos of defendant during trial

4 Because the record does not include copies of the discovery materials exchanged, we cannot be certain when the information discussed in this section was first disclosed. 39 We recognize that when this case went to trial in 2019, the assistant

prosecutor did not have specific guidance about the use of photos during trial

preparation and the disclosure requirements outlined above. But without

knowing what took place, defense counsel was not in a position to ask for a

Wade hearing prior to trial. On two occasions, defense counsel asked for a

testimonial hearing in the middle of trial, but the trial court declined to

conduct the full hearings sought.

Because it is not entirely clear from the record who saw which photos,

and when they saw them, we remand to the trial court to develop a factual

record and conduct a Wade hearing. Based on the outcome of the hearing, the

trial court should determine, witness by witness, whether the testimony should

have been admitted and whether a new trial is warranted. See Henderson, 208

N.J. at 300. We offer no view on the outcome of the hearing.

If the court decides that a new trial is required, defendant’s conviction

should be vacated and a new trial date set.

VII.

For the reasons set forth above, we remand to the trial court for further

proceedings consistent with this opinion.

40 JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, FASCIALE, and NORIEGA join in CHIEF JUSTICE RABNER’s opinion.