Chief Justice Rabner continued in relevant part: The Appellate Division affirmed defendant’s conviction. The panel found that “the failure to record Roberts’ actual words” of confidence was not “a sufficient violation (if a violation at all) of Delgado and Rule 3:11 to warrant exclusion of the evidence.” The Appellate Division also rejected defendant’s belated challenge that it was plain error for the court not to instruct the jury about that circumstance.
The Court granted certification “limited to the issue of the State’s failure to comply with the requirements of” Delgado. 231 N.J. 110 (2017). Because Rule 3:11 was not fully followed, and because the record does not reveal whether the shortcomings were technical or substantive, the Court remands for a full hearing consistent with Wade and Henderson. Based on the evidence developed at the hearing, the trial court will be in the best position to determine whether a new trial is warranted.
In Henderson, the Court revised the legal framework for the admission of eyewitness identification evidence and held that when defendants can show some evidence of suggestiveness tied to a system variable, they are entitled to explore all relevant system and estimator variables at a pretrial hearing to try to challenge the admissibility of the identification. 208 N.J. at 288-93. Confirmatory feedback is one of a number of variables that can affect memory. Positive feedback can distort memory and “create a false sense of confidence.” Id. at 255. That is a significant concern because of how much weight jurors place on the level of confidence a witness displays at trial. Id. at 274.
In Delgado, the Court required “that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results.” 188 N.J. at 63. Delgado encouraged but did not mandate the use of tape recorders to preserve identification procedures. Ibid. In addition, the Court asked the Criminal Practice Committee to prepare a rule to incorporate the above principles. Id. at 64.
“Encouraging but not mandating” is pointless. It will often encourage violation of a rule by signaling an unfair advantage that can be gained with no risk of evidence suppression.