State v. Herrera

¶1dissenting.

¶2Misidentification is the single greatest source of error leading to wrongful convictions in this country.1 In recent years, capital convictions have been overturned in a number of jurisdictions because DNA evidence has irrefutably established that the defendants condemned to death were wrongly convicted based on mistaken identification testimony. Fair identification procedures cannot fully ensure that mistaken identifications will not occur, for any ultimate judgment that relies on human perception and memory is fraught with the potential for error. Highly suggestive *521identification procedures, however, exponentially increase the possibility of misidentifications and unjust convictions.

¶3With those simple truths in mind, I cannot join with my colleagues in sanctioning the showup identification procedure in this case in which the police specifically cued the witness to identify defendant. That procedure was so patently unfair and unnecessarily suggestive that it undermines any confidence in the reliability of the identification itself. I fear that the Court’s approval of the admissibility of the identification in this case will signal that virtually any identification procedure in this State, however loaded and unfair, will pass constitutional muster. The unintended consequence of today’s decision will be the admission of more highly suspect identifications leading to more wrongful convictions.

¶4Under the present constitutional standard followed by the majority, a suggestive identification procedure—however unnecessary—will not lead to the exclusion of an identification if a court finds the identification otherwise reliable. To minimize the number of wrongful convictions in our system of justice, the time has come for this Court to set new standards that prohibit highly suggestive identification procedures, such as the showing of a single suspect to a witness, when they are unnecessary—that is, when they are not warranted by any exigency. Nevertheless, even under current law, the identification of defendant should have been excluded because the showup procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifícation. I therefore respectfully dissent.

¶5I.

¶6The facts of this case present a compelling picture of impermissibly suggestive identification techniques that corrupted the reliability of the identification. Having completed his shift work as a security guard, sixty-two-year-old Benjamin Valentin was seated in his car shortly after 12:00 a.m. when he was approached by a *522person on a bicycle. That person knocked Valentin unconscious, pulled Valentin from his car, and then stole the car.

¶7When the police arrived on the scene, the bloodied victim gave a description of his assailant. There were a number of discrepancies between that description and the way defendant Carmelo Herrera looked and was dressed that evening. Valentin described his assailant as a male with short black hair; Herrera had a shaved head. Valentin stated that his assailant was wearing white sneakers; Herrera, however, was wearing red and gray boots. Valentin did not mention that his assailant had facial hair; Herrera was sporting a goatee. Valentin also did not convey that his assailant had a facial scar; Herrera had a noticeable scar on his left cheek.2

¶8From the scene, paramedics transported Valentin to St. Mary’s Hospital, where he was treated for his injuries. Valentin testified that at the hospital an officer told him that the police had recovered his car and had “arrested somebody in the ear.” Valentin was then told that he would be taken to headquarters for the purpose of identifying that person.

¶9When they arrived at Harrison police headquarters, the suspect—Herrera—was not there. In fact, Herrera was at West Hudson Hospital. Although the police obtained photographs of Herrera at headquarters, for some inexplicable reason they did not put together a photographic array and ask Valentin whether he could identify his assailant from the array. Instead, the police told Valentin, ‘We’re going to the hospital to do an identification.” Sometime between 3:00 a.m. and 4:00 a.m., the police took Valentin to West Hudson Hospital and ushered him into an emergency room, where Herrera was lying on a gurney surrounded by police officers and nurses. The police said to Valentin, “[C]ome here, *523sir, you can identify whoever hit you.” Unsurprisingly, Valentin,, who had been told earlier that he would be shown the man found in his car, identified Herrera, the only patient in the room.

¶10II.

¶11I agree with the majority that the identification procedures were impermissibly suggestive. I disagree with the majority’s conclusion that the suggestive identification procedures did not give rise to a very substantial likelihood of irreparable misidentifieation. First, Herrera was under arrest at the hospital. Because he was not about to be released and the police had photographs of him which could have been placed in an array and shown to Valentin, there was no need for a showup. Second, it was inexcusable for the police to tell Valentin that the suspect he would be shown was found in his car. Besides the fact that defendant was found standing outside the car, it was entirely irrelevant to whether Valentin could identify his assailant. The subliminal message conveyed by the police was, ‘We found the man who attacked you.” Even when a photographic lineup is shown to a witness, the Attorney General’s Guidelines instruct police officers not to cue the witness in any way towards a particular photograph.3 Here, in a staged showup, the police cued Valentin to identify the one civilian shown to him in a hospital room. It is difficult to imagine a more unnecessarily suggestive identification procedure, a procedure more likely to fatally distort the memory of a witness.

¶12*524Under those circumstances, whatever certainty Valentin expressed in identifying Herrera is suspect. It bears mentioning that whether a witness makes a correct identification or a mistaken identification, the witness invariably is certain about his or her selection.4 In light of the impermissibly suggestive techniques, it is impossible to credit the reliability of the identification in this case. Valentin caught only a brief glimpse of his attacker, he was knocked unconscious, and he gave a description of his attacker that did not conform in significant ways to the appearance or dress of Herrera. Moreover, only after Valentin was told that the person he would be shown was found in his car did he say that he knew his assailant.

¶13III.

¶14New Jersey has “consistently followed the [United States] Supreme Court’s analysis on whether out-of-court and in-court identifications are admissible into evidence.” State v. Madison, 109 N.J. 223, 233, 536 A.2d 254 (1988). That analysis requires that courts set aside convictions based on eyewitness identification only if the “identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). Within that construct, “reliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). Ultimately, a court must determine “whether under the ‘totality of the circumstances’ the identification was rehable even though the confrontation procedure was suggestive.” Neil v. Biggers, 409 U.S. 188, *525199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972). Because the primary focus of the analysis is not on whether the identification procedure was unnecessarily suggestive, but on whether the identification was reliable, “the failure of police to follow the line-up procedure will not, of itself, render the pretrial identification invalid as being unduly suggestive or totally unreliable.” See State v. Thomas, 107 N.J.Super. 128, 132, 257 A.2d 377 (App.Div. 1969).

¶15A

¶16Commonsense and a multitude of social science studies tell us that “the one-person ‘showup,’ in which the eyewitness confronts a single suspect, is particularly conducive to misidentifications.”5 Charles A. Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L.Rev. 1097, 1104 (1974). Indeed, according to one commentator, the showup “constitutes the most grossly suggestive identification procedure now or ever used by the police.” Patrick M. Wall, EyeWitness Identification in Criminal Cases 28 (1965). In United *526States v. Wade, the Court found it difficult “to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police.” 388 U.S. 218, 234, 87 S.Ct. 1926, 1936, 18 L.Ed.2d 1149, 1161 (1967). Thus, “[t]he practice of showing suspects singly to persons for the purposes of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); see also Lawrence Taylor, J.D., Eyewitness Identification 102 (1982) (commenting that “experts in the field of law and police methods have been uniform in their condemnations of the showup procedure”).

¶17Despite the widespread condemnation of the unnecessary use of showups, the police continue to employ the technique in unwarranted circumstances. See Steven P. Grossman, Suggestive Identifications: The Supreme Court’s Due Process Test Fails to Meet Its Own Criteria, 11 U. Balt. L.Rev. 53, 59-60 (1981). The unnecessary use of the showup is still in vogue because the current standard followed by the United States Supreme Court and this Court “provide[s] the police with a fairly clear signal that absent extremely aggravating circumstances, the one-on-one presentation of suspects to witnesses will result in no suppression.” See id. at 60. Case law indicates that even “flagrantly] suggestive conduct might produce no negative consequences for the police.” See id. at 59. Thus it is clear that the present standard does not impose on the police a disincentive for using highly suggestive identification procedures when non-suggestive procedures are readily available.

¶18In light of the increased likelihood of misidentifications by the use of showups, this Court should not be timid about barring that highly suggestive procedure in circumstances when its use is not warranted. See Benjamin E. Eosenberg, Rethinking the Right to Due Process in Connection with Pretrial Identification Procedures: An Analysis and a Proposal, 79 Ky. L.J. 259, 276 (1991) (noting that “[s]ince the Supreme Court has held that the sole value underlying the right [to due process] is reliability, the *527critically important interest of procedural fairness in pretrial identification procedures is unprotected”); Wallace W. Sherwood, The Erosion of Constitutional Safeguards in the Area of Eyewitness Identification, 80 How. L.J. 439, 457 (1987) (stating that “Biggers approach allows courts to make a determination of the defendant’s guilt and disregard completely the realities of eyewitness identification”); Jessica Lee, Note, No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-ups, 36 Colum. Hum. Rts. L.Rev. 755, 756-57 (2005) (remarking that “standards articulated by the Supreme Court to address th[e] risks [of mistaken identifications] have not been sufficient to remedy the problems accompanying non-exigent show-ups”); Note, Pretrial Identification Procedures—Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn. L.Rev. 779, 790 (1971) (stating that United States Supreme Court’s decisions “protect only the due process rights of those suspects who, in the court’s opinion, are innocent____ [N]o matter how suggestive the confrontation might have been, the suspect’s right to due process goes unprotected.”).

¶19If a suspect has been in custody for days and a photographic or in-person lineup is feasible, it is inexcusable for the police to use a procedure pregnant with the possibility of error. On the other hand, the showup still has a place in appropriate cases, as evidenced by the facts in Stovall v. Denno, supra.In that case, a stabbing victim was hospitalized, and it was uncertain whether or how long she might live. 388 U.S. at 302, 87 S.Ct. at 1972, 18 L.Ed. 2d at 1206. Two days after the stabbing, the defendant was taken into custody and brought to the victim’s hospital room. Id. at 295, 87 S.Ct. at 1969, 18 L.Ed.2d at 1202. The Court noted that “the only person in the world who could possibly exonerate [the defendant]” was the victim. Id. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206 (internal quotation marks omitted). “Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that [the victim] could not visit the jail, the police followed the only feasible procedure *528and took [the defendant] to the hospital room.” Ibid, (internal quotation marks omitted).

¶20B.

¶21To a person whose fate depends on the accuracy of an identification, it is fundamentally unfair for the police to unnecessarily employ a technique that maximizes the potential for error. The case before us presents the perfect opportunity to review this Court’s current standards governing unnecessarily suggestive identification procedures.

¶22It is time for this Court to announce that the use of unnecessarily suggestive identification procedures violates the due process guarantees of Article I, Paragraph 1 of the New Jersey Constitution. See State v. Maisonet, 166 N.J. 9, 21, 768 A.2d 1254 (2001) (“When a defendant is inexplicably subjected to arbitrary, unfair, and egregious action at the hands of the State, principles of fundamental fairness require our intervention.”). By doing so, we will be in step with a number of other states that have rejected the United States Supreme Court’s approach and relied on their own state constitutions to ensure that unnecessarily suggestive identification procedures are not used by the police. See Commonwealth v. Botelho, 369 Mass. 860, 343 N.E.2d 876, 880 (1976) (barring prosecution from introducing “confrontation that was unnecessarily suggestive”); State v. Leclair, 118 N.H. 214, 385 A.2d 831, 833 (1978) (finding that “[t]here is no legitimate reason for the police to use unnecessarily suggestive identification procedures” and condemning use of one-man showups “absent exigent circumstances”); People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520, 523 (1987) (declaring showups “permissible if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately” (citation omitted)); State v. Dubose, 285 Wis.2d 143, 699 N.W.2d 582, 584 (2005) (holding that “evidence obtained from [an out-of-court] showup will not be admissible unless, based on the totality of the circumstances, the showup was *529necessary”). In one form or another, those jurisdictions all have found that by overly focusing on the reliability of the identification itself, the federal approach has inadequately protected against “unnecessarily suggestive identification procedures, ... mistaken identifications and, ultimately, wrongful convictions.” See Commonwealth v. Johnson, 420 Mass. 458, 650 N.E.2d 1257, 1262 (1995); see also Leclair, supra, 385 A.2d at 833; People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379, 383-84 (1981); Dubose, supra,699 N.W.2d at 591-92.

¶23Those jurisdictions recognize what Justices Marshall and Brennan understood in Manson v. Brathwaite, supra:

[IJmpermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law. For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal.

[432 U.S. at 127, 97 S.Ct. at 2259-60, 53 L.Ed.2d at 162 (Marshall, J., dissenting) (citation omitted).]

¶24Like those jurisdictions, I would preclude the introduction into evidence of an identification that is the product of an unnecessarily suggestive identification procedure. See id. at 127, 97 S.Ct. at 2259, 53 L.Ed.2d at 162 (“[Exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods.”). In this case, the police essentially conveyed to the victim that the suspect about to be displayed to him in a showup had stolen his car. That procedure guaranteed the identification of defendant, not a fair selection process.

¶25I am mindful that police officers act under the stress of fast moving and developing events and that it is easy to second-guess their judgment from the safe distance of hindsight. Courts should resist the temptation to do so. In determining whether an identification procedure was unnecessary, I would require that the defendant bear the burden of proving by a preponderance of evidence that another less suggestive procedure would have been *530employed by a reasonable police officer faced with similar circumstances.

¶26IV.

¶27The majority claims that the issue of whether we should adopt a new standard barring the use of unnecessarily suggestive identification procedures is not properly before us. I disagree. The parties have briefed and argued before this Court that precise point. This Court has the power to exercise “such original jurisdiction as is necessary to the complete determination of any matter on review.” R. 2:10-5. Although it is true that defendant did not ask the lower courts to overrule this Court’s jurisprudence on identification procedures, we would hardly expect a lower court to do so. Only this Court has the authority to overturn its own precedents. When this Court has spoken, change must come from the Court itself. The issue is before us; we should not avert our eyes.

¶28V.

¶29I believe that defendant’s due process rights under both the Federal and State Constitutions were violated by the admission of the identification in this case. I therefore would reverse the judgment of the Appellate Division and order a new trial at which the identification evidence would be excluded. I also would hold that Article I, Paragraph 1 of our State Constitution does not allow for the admission into evidence of identifications made through unnecessarily suggestive procedures. For those reasons, I respectfully dissent.

¶30Justice LONG joins in this opinion.

¶31For affirmance—Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO—5.

¶32For reversal—Justices LONG and ALBIN—2.