Chief Justice Rabner continued in relevant part: Joan also testified at trial. She was shown two still photos from the bank surveillance video and testified she was 100 percent positive that each depicted defendant.
Sergeant Frank Vitelli, Jr., testified about the investigation. Over objection, Sergeant Vitelli narrated the bank surveillance video. The prosecutor asked a series of questions while the video was played for the jury, ranging from general inquiries — “What do you see?” — to specific ones — “With what [did he open the door]?” The more open-ended questions invited and led to more open-ended narrative responses.
Sergeant Vitelli also testified about how his department learned about defendant. He confirmed that he had been “contacted by another law enforcement agency regarding” defendant, and that he “consulted with that law enforcement agency . . . after which criminal complaints were signed against” defendant. The jury found defendant guilty of robbery. The Appellate Division affirmed his conviction, 472 N.J. Super. 381, 404 (App. Div. 2022), and the Court granted certification, 252 N.J. 598 (2022).
Based on the identification evidence alone, defendant’s conviction cannot stand. The inherently suggestive nature of first-time in-court identifications, conducted in front of a jury, risks depriving defendants of their due process rights. The Court holds that first-time in-court identifications may only be conducted when there is good reason for them and sets forth certain practices that must be observed in connection with in-court identifications.
The narration evidence in this case also ran afoul of the evidence rules, which do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording. The Court identifies certain safeguards to underscore the limited use of narration evidence and adds that a party intending to present narration evidence should provide opposing counsel with a written summary of the proposed testimony before trial.
The reason that identification testimony like this is the leading cause of wrongful conviction is because the witness believes that he or she is telling the truth. Therefore, the witness’s demeanor comes across to a jury as credible whereas an intentionally deceptive witness does not.