The Court continued in relevant part: Finding no reason to treat impermissibly suggestive events during trial preparation differently from other suggestive identification procedures, the Court extends the relevant principles in Henderson to trial preparation sessions. Witnesses who have made a prior identification should not be shown photos of the defendant during trial preparation — neither new photos of the defendant for the first time nor, absent good reason, the same photos they previously reviewed. If a party can demonstrate a good reason to show witnesses a photo of the defendant they previously identified, the party must prepare and disclose a written record of what occurred. If, however, a witness has not previously identified a suspect, investigators can conduct an identification procedure during pretrial preparation in accordance with Henderson. A record of the procedure should be created and disclosed under Rule 3:11. Here, to determine the admissibility of the identification evidence, the Court remands to the trial court to conduct a hearing under United States v. Wade, 388 U.S. 218 (1967), and develop a more complete factual record.
Suggestive identification procedures may so irreparably taint out-of-court and incourt identifications that a defendant is denied due process. Henderson, 208 N.J. at 285. It is the likelihood of misidentification which violates a defendant’s right to due process. Those due process concerns logically apply to suggestive identification procedures that take place early in an investigation as well as later during trial preparation. The Court therefore considers whether the principles of Henderson extend to pretrial preparation.
The Court observed in Henderson “that the possibility of mistaken identification is real” and “that eyewitness misidentification is the leading cause of wrongful convictions across the country.” Id. at 218. The opinion identified a series of variables and their possible effect on the reliability of identification evidence. Id. at 248-72. Among other factors, Henderson addressed the effect of multiple viewings of a suspect, the use of showups, confirmatory feedback, blind administration, and memory decay.
A Wade hearing is most useful as a tool to question witnesses and develop potential impeachment evidence. Identification evidence is only suppressed in the rarest of cases.
