The New Jersey Supreme Court continued in relevant part: Confrontation Clause challenges are fact-specific. The testimony here about consultation with other law enforcement agencies violated defendant’s right to confrontation, and the Court provides guidance for remand.
In State v. Henderson, the Court revised the standard for assessing whether eyewitness identification can be admitted in individual cases. 208 N.J. 208, 218-19 (2011). As to “show-ups” — “single-person lineups” in which “a single suspect is presented to a witness to make an identification” — Henderson reaffirmed that they are “inherently suggestive.” Id. at 259, 261. Henderson did not address in-court identifications. Certain factors discussed in the opinion, however, are directly relevant to a first-time in-court identification, which is essentially a live, singleperson line-up in a courtroom. Compared to a show-up, the witness is given an even stronger impression that the authorities are already satisfied that they have the right man. Plus, in-court identifications are conducted in the presence of a judge, lending the court’s imprimatur to the procedure. Further, memory weakens with time, see id. at 218, and in-court identifications at trial invariably occur months if not years after the crime was committed.
Suggestive police procedures may so irreparably “taint” identifications that a defendant is denied due process. Suggestive behavior by private actors does not implicate due process, but a prosecutor’s conduct in court constitutes state action. Perry v. New Hampshire, 565 U.S. 228 (2012), did not hold otherwise. The Supreme Judicial Court of Massachusetts has held that a first-time in-court identification should be treated “as an in-court show-up” and allowed “only where there is ‘good reason’ for its admission,” such as when a witness is already “familiar with the defendant” from before the crime, or when “the identification merely confirms that the defendant is the person who was arrested for the” offense. Commonwealth v. Crayton, 21 N.E.3d 157, 169-70 (Mass. 2014).
Tighter restrictions apply when a witness previously “failed to make a positive identification.” See Commonwealth v. Collins, 21 N.E.3d 528, 536 (Mass. 2014). Connecticut has taken an even more restrictive approach to first-time in-court identifications, whereas other courts do not accord them special treatment.
The examples of permissible in-court identifications from Massachusetts are not “identifications” in the sense that is contemplated by State v. Henderson. They are more akin to “confirmation” of a known person.
