Pre-Trial Identification Methods in New Jersey Criminal Cases

Learn with Our Criminal Defense Attorneys How the State Identifies Suspects through Pre-Trial Identification Strategies in New Jersey

Pre-Trial Identification Methods and Defense NJ Before the state can prosecute an accused, it must satisfy the criminal court judge with sufficient evidence that the defendant is the one who committed the crime or crimes in the complaint. Sometimes, the state may provide proof of an eyewitness who saw the defendant committing or otherwise involved in the offense to identify the defendant. The state has several options for evidencing the defendant’s identity, including lineups, show-ups, photo identification, fingerprinting, dental examination, spectrographic voice exemplars, and footprint analysis.

Pretrial identification procedures are crucial to fairness and preventing a miscarriage of justice. When someone is wrongly identified as a murderer, for example, the misidentified accused could face a conviction and lengthy prison sentence, which would be a travesty of justice. As such, the pretrial identification process must be fair and free of bias, mistakes, and undue influence.  Unfortunately, an attorney is not necessarily guaranteed under the Constitution at a pretrial identification proceeding. Since the accused is not yet in custody and under interrogation, the 5th and 6th Amendment constitutional protections against incrimination and the right to an attorney do not kick in. Without an attorney, however, a witness may identify a suspect under circumstances highly suggestive or rife for misidentification. For this reason, it is crucial to engage with and retain and experienced criminal defense lawyer as soon as you find out that you may be a suspect or believed to be involved in a criminal case in New Jersey.

Main Types of Pretrial Identification Procedures in NJ

The victim, a co-defendant, or a bystander may identify the accused. That identification may occur in court or outside court in a lineup, photograph, or show-up. When it occurs in a courtroom, the identification is often damning. A witness pointing to the defendant and identifying them as the one who committed the murder, sexual assault, theft, assault, or another crime, is powerfully convincing evidence to a jury.

Outside of court, a pretrial lineup consists of a sampling of people, including the suspect and others who appear like the suspect. When it is proper, a group of people line up, one being the suspect, and they all look the same age, height, and facial features. Then, a witness views the line of individuals behind a one-way mirror and can or cannot identify the suspect. However, when the lineup gathers people who look nothing like the suspect and differ in significant regard, say, all but the suspect look like older police officers, the lineup is highly suggestive and flawed.

A show-up occurs when an eyewitness identifies the suspect where they appear,  hopefully among others. Otherwise, the show up may be tainted when only the defendant is at the designated location. An eyewitness may be influenced by seeing only the defendant. And photo identification occurs when a witness identifies a suspect from a group of mugshots. Again, the photographs cannot frame the suspect by grouping them with clearly different faces, lighting, or distances from the camera, and the officers must not give hints.

Flawed vs. Fair Pretrial Identification of Suspects in Criminal Cases

The fairest pretrial identification is one where the officer showing the witness the lineup, show-up, or mugshots does not know the suspect’s identity, a double-blind procedure to eliminate any subtle suggestiveness. According to New Jersey case law, a double-blind identification avoids conscious or unconscious suggestiveness. For example, when a police officer pauses over a photograph or suspect in the lineup, gestures, or smiles, this may suggest to the witness which one to pick.

Pretrial identifications have inherent problems. For one, witnesses to a crime may be under highly stressful situations. A gun or other weapon may draw the witness’s attention so that they do not get a good look at the suspect, or the trauma may be so severe that the witness cannot remember the suspect. However, it is also a human tendency to want to choose a suspect and help the police even if they do not recall the suspect. And once they choose a suspect, the witness focuses on the details of the suspect and fills their specific features into the crime scene, becoming more convinced in time that they chose the right person. Even without high stress and anxiety and the tendency to want to pick a suspect, human memories are flawed. Most people do not remember details as if recorded on a video, so when an officer asks for the height, weight, hair, and age, a witness may not recollect these details but form a picture that fills in the missing information.

Testing the Validity of Witness Identification for Criminal Charges in NJ

Whether a police officer’s identification ought to be tested like a civilian identification would be exemplified in the case of State vs. Dorian Pressley. In that case, an undercover detective purchased cocaine from someone who told the officer to keep their number under the first three letters of their name, DOR. At the same time, an officer with binoculars watched the interaction. Later, another officer encountered the suspect but knew them, so they refrained from detaining the suspect to protect the undercover operation.

Later, at the police station, the third officer reproduced a photo of the suspect, Dorian Pressley, and showed it to the undercover agent who bought the cocaine. That person identified the suspect from the photograph. At trial, the defense objected to the procedure as flawed and suggestive. However, considering the overwhelming evidence against the defendant, the Appellate and Supreme Courts affirmed the defendant’s conviction.

The Henderson Standard for Pretrial Identification in Criminal Law

In one of the concurring opinions of the Supreme Court decision, the justice noted that State vs. Henderson 208 N.J. 208 determined that a single photograph presented to an eyewitness is “inherently suggestive,” which could lead a witness to believe the person in the photograph is the suspect who committed a crime, and that even police officers can be corrupted with such evidence. Therefore, New Jersey law permits a pretrial hearing to determine whether a single photograph identification is too suggestive and, thus, disallowed. The concurring opinion states that though police training causes officers to note and remember a person’s features, they are still subject to memory flaws and suggestions. Thus, a pretrial hearing to review the suggestiveness of a pretrial identification procedure was warranted to measure against the Henderson standard.

In Henderson, the court determined that an officer conducting a photo identification should not know the suspect or their photograph to eliminate unconscious suggestiveness. The photo lineup should have six photos, including the suspect’s, and the officer conducting the lineup should tell the witness that the suspect may or may not be in the lineup, and they should not feel obligated to identify anyone. Moreover, all that is necessary to obtain a pretrial hearing is to show some evidence of suggestiveness that a court can review, considering the officer’s training and experience and the circumstances of the identification procedure to rule on the reliability of the identification. The justice further asserted that the state should be burdened to show why they could not have used several photos for identification purposes and a fairer procedure.

Not Guaranteed an Attorney During Pretrial Identification in NJ, So Why Have One?

Since a defendant does not have the right to an attorney during pretrial identification procedures, challenging the state’s identification of the defendant may be difficult. However, the Constitution’s 6th Amendment guarantees defendants the right to counsel after the state charges them with a crime. Additionally, the 14th Amendment to the U.S. Constitution forbids suggestive pretrial identifications and ones likely to yield misidentifications. New Jersey law is similar.

The need for an attorney begins immediately in the criminal process to prevent law enforcement from extracting confessions or incriminating evidence from the defendant in violation of their right to counsel and the 5th Amendment’s right against self-incrimination. Thus, pre-identification procedures are the subject of constitutional challenges. Lineups and show-ups have been challenged under the 6th and 14th Amendment grounds. However, fingerprinting and other identification methods are seen as constitutional.

Don’t Go Through Pretrial Identification in Your New Jersey Criminal Case Alone

Contact the renowned team of criminal defense attorneys at The Tormey Law Firm immediately if you have been subject to a pretrial identification procedure or you are wanted or contacted by the police for questioning, identification, and more potential investigative techniques. It is highly advisable to have your criminal defense lawyer overseeing and engaged in how police conduct the process, as anything you say or do can and will be used against you if you end up facing criminal charges. Any inherent flaws or errors during pre-trial identification may lead your attorney to obtain a pretrial hearing on the identification’s reliability. A flawed identification lineup or show-up could spell trouble for the state since identifying you as the suspect is critical to justice and proof. Depending on what occurs throughout the criminal justice process, our lawyers may have grounds to dismiss your case. Call a criminal defense attorney to defend you and protect your rights every step of the way. You can reach us for a free consultation anytime at (201)-556-1570.


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