On January 8, 2024, the New Jersey Supreme Court decided the Burlington County case of State v. Brandon Washington. The principal issue before the Court concerned the rules concerning eyewitness identification procedures as they relate to trial preparation.
Chief Justice Rabner wrote for a unanimous court in relevant part: In this appeal, the Court considers whether the safeguards relating to eyewitness identification evidence set forth in State v. Henderson, 208 N.J. 208 (2011), should apply when lawyers meet with witnesses to prepare for trial. Defendant Brandon Washington was forcibly removed from a “Ladies Night” event after an argument with a security guard. Seconds later, someone fired shots into the event venue, striking two people. After an investigation, defendant was charged with two counts of attempted murder.
During the initial investigation, several witnesses selected defendant’s picture from a photo array. Later, during trial preparation, an assistant prosecutor showed witnesses the array they had seen before or a single photo of defendant from Facebook. The witnesses later identified defendant in court. One did so for the first time at trial. Through questioning at trial, it emerged that the witnesses had been shown photographs of defendant. Defense counsel requested a Rule 104 hearing to develop a record as to what was shown to witnesses during trial preparation. The court held a hearing only as to a single witness whose name had not been included on the State’s witness list, and the court declined to expand that hearing beyond whether the witness should be permitted to testify.
The jury convicted defendant of a lesser included offense — attempted passion provocation manslaughter — on both counts. Defendant appealed, and the Appellate Division affirmed his conviction. The Court granted defendant’s petition for certification “limited to the issues concerning the prosecutor showing witnesses photos of defendant during pretrial preparations.” 253 N.J. 186, 186-87 (2023).
Here, there was likely a request for a testimonial Henderson hearing that was denied. Under those circumstances, defense counsel would have to wait for trial to question witnesses in front of a jury.