Eyewitness identification procedures revised

By Ed Esposito

On February 9, the New Jersey Attorney General revised the procedures law enforcement officers must follow when composing, conducting and recording out-of-court identifications made by an eyewitness. The changes were prompted by two separate New Jersey Supreme Court decisions in 2019 that ultimately led to the court adopting revised rules for recording an out-of-court identification (Rule 3:11).

The first case, State v. Anthony, 273 N.J. 213 (2019), clarified that law enforcement officers must record identification procedures electronically, preferably by video and audio. If that is not possible, then a  contemporaneous written account must be made. As a last resort, if neither of those options is possible, the administrator of the identification procedure is required to provide a detailed summary of the  procedure, and they must document the reasons why the electronic recording or contemporaneous record was not possible.

The second case, State v. Green, 239 N.J. 88 (2019), set forth new obligations for the state when officers search for an unknown suspect based on a witness’s physical description of that suspect by using an old-fashioned, hard-copy “mug book” or a more contemporary digital database of mug shots. In order for this procedure to be admissible in court, law enforcement must now preserve certain photos the witness views when making an identification. When relevant, the state will also have the burden of showing that a witness was not exposed to multiple photos or viewings of the same suspect. The court’s decision in this case specifically requires the following photos or images to be retained, thereby enabling an appropriate review in the future:

  • The photo of the suspect the witness selected, along with all other photos on the screen or page; and
  • 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 new policy issued by the attorney general now specifies the specific recording requirements of any out-of-court identification procedure. In general, the requirements for live lineups and photo lineups remain the same. In addition, the requirements for providing instructions to a witness and having a “blind administrator” for the procedure remain in place. The same practices are also now applicable when officers are using a physical mug book or a digital mug book.

When using a mug book, preparers should ensure that only one photo of each individual is in the mug book. If feasible, mug shot–identification procedures should be conducted sequentially — i.e., showing one photo or one person at a time to the witness, rather than simultaneously. Officers must also ensure that no writing or information concerning previous arrests will be visible to the witness. The amended court rule governing these procedures now states: “The visual depiction may consist of photographs or images fixed in any medium now known or later developed.” This virtually ensures that any advances in technology that will be used for out-of-court identification must follow the same procedures.