Out-of-Court Identification Tag

Supreme Court Grants Petition for Certification in a Photo Array Case

By Andrew Gimigliano on 10/20/2017
Posted In Out-of-Court Identification, Petition for Certification, Supreme Court

The Supreme Court today decided to review an unpublished opinion of the Appellate Division: State v. Anthony, decided April 5, 2017. The Court Clerk’s office frames the issue on review: “Is defendant entitled to a new trial based on the police officer’s failure to record verbatim the comments of the witness while identifying defendant from a photographic array?”

After conviction at trial on a number of charges, the most serious being second-degree conspiracy to commit armed robbery, the defendant filed an appeal challenging the out-of-court identification process (which was introduced at trial without objection). According to the Appellate Division opinion, the defendant argued that the victim’s out-of-court identification was inadmissible because the police failed to “immediately record” the victim’s own words related to his statement of confidence when he identified the defendant’s photograph. The defendant also argued that the trial court failed to give the proper instruction on how the jury should consider the failure to record the victim’s actual words.

The panel sided with the State, concluding that the out-of-court identification process was appropriate and in accordance with the law and that the trial court gave a thorough and correct identification charge. The Supreme Court will now weigh in, adding to its witness identification jurisprudence (e.g., State v. Henderson, 208 N.J. 208 (2011); State v. Delgado, 188 N.J. 48 (2006)).