Pre-trial Identification Procedures in New Jersey

In every criminal case in New Jersey, the prosecution must prove the identity of the person who commits the crime. The prosecution must present evidence that the defendant is the perpetrator to the charged crime. The evidence may be in-court identification of the accused by an eyewitness, an individual who sees or has knowledge of the commission of a crime as well as the guilty party. An eyewitness can be a bystander at the crime scene, the crime victim, or co-conspirator testifying against the defendant in exchange for a lesser penalty.

An eyewitness may identify the perpetrators of a crime through lineups, showups, or photo identification. A lineup is a group of people, one of whom is the criminal suspect; the others are police officers or decoys closely resembling the physical characteristics of the suspect. The eyewitness stands behind a one-way mirror and informs whether or s/he can identify the suspect. A showup is when the eyewitness shows up at a place where the defendant happens to be. A showup may be impermissibly suggestive if the defendant is the only other person at a place. Photo identification is used when the eyewitness is brought to the police station and asked to review a series of mug shots of possible suspects to see if s/he recognizes any of the people in the headshots.

A defendant may not be ensured an attorney during the lineup or other pre-trial identification. The US Constitution 5th Amendment right to counsel only protects testimonial evidence when a defendant is under custodial interrogation. A pretrial identification is not considered interrogation. Without an attorney present, there may be no one to protect the defendant from misidentification. The due process clause of the US Constitution 14th Amendment prohibits a pretrial identification process that is (1) unnecessarily suggestive and (2) where there is a substantial likelihood of misidentification. New Jersey state laws provide due process protections similar to the US Constitution. For example, hypothetically, Wes, an eyewitness was taken to a courthouse to identify a killer from photographs of several suspects. As Wes walked into a courthouse, he encountered Defendant without his lawyer. With an officer prompting, Wes told the officer he recognized Defendant as the killer. These facts support a due process violation because Wes identified D as the killer with prompting by the officer.

The US Constitution 6th Amendment guarantees a right to assistance of counsel after beginning criminal judicial proceedings (formal charges filed). The right to counsel prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless he waives his right to counsel.

Once arrested, police or prosecution intimidation and the complex legal system can be frightening. A criminal defendant needs an experienced criminal defense attorney to ensure rights no violation of rights.