                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                      State v. Kwesi Green (A-56/57-17) (080562)

Argued January 2, 2019 -- Decided July 23, 2019

RABNER, C.J., writing for the Court.

        In this case, a robbery victim identified her assailant from an extensive database of
digital photos. The witness was mistakenly allowed to review the photos through a
feature of the database meant to be used by law enforcement officers, not eyewitnesses.
In addition, the police saved only the photo the victim ultimately selected -- an image of
defendant. Beyond that, the system contained multiple photos of defendant. The Court
considers what took place in light of known risks associated with eyewitness
identification, as well as case law and a court rule that address how identification
procedures should be conducted and preserved.

       The victim, who was robbed at gunpoint while she waited for a bus, described her
assailant to Newark Police Detective Donald Stabile. She said she “got a very good
look” at her assailant and would be able to identify him. The victim then viewed photos
through the HIDTA DataWorks PhotoManager System (HIDTA system or database).
The HIDTA system for the NY/NJ region has millions of photos, including those of all
adults arrested by the Newark Police Department. If someone is arrested in the relevant
area more than once, the system will have multiple photos of the individual.

       The HIDTA system has two modes: one for investigators and the other for
witnesses. In “investigative mode,” law enforcement officials can search for a known
suspect by name or other identifier. If the suspect’s identity is not known, an officer can
use investigative mode to narrow the field of photos based on a witness’ description.
Should the witness then select a photo and say the person in the photo resembles her
assailant, an investigator can generate other similar photos to review. Individual photos
can be printed, but no report of the session can be created in investigative mode. Finally,
an officer can click on a photo in investigative mode to reveal a host of information about
the person -- including his or her name and the date and time of arrest.

       “Witness mode” is for witnesses to view digital images of mugshots. A witness
can signal whether someone is the suspect or a possible suspect by telling the officer or
by clicking under a photo. At the end of a session, witness mode can generate a report of
the photos displayed, how long each was displayed, and whether the witness marked a
                                             1
photo. The report generates a log of numbers, each of which links to a single photo. It is
also possible to print individual photos in witness mode.

        Detective Stabile interviewed the victim at the police station shortly after the
armed robbery. He then entered various parameters in the HIDTA system in
investigative mode. Without switching to witness mode, he set the witness up at a
computer, explained how to scroll through photos with six on a screen at a time, and
asked her to notify him if she saw her assailant or anyone who looked similar. According
to the detective, the victim looked through the narrowed field of digital photos for several
minutes. She then told the detective that one of the photos looked like the assailant. The
detective did not know how many photos she had viewed and did not print the particular
photo she flagged. Still in investigative mode, the detective narrowed the field to images
similar to the one the witness selected. Within a few seconds, she identified defendant
from the first page of photos she viewed next. The detective did not print the six photos
from the final screen; he printed only the single photo the victim identified as her
assailant. No report of the photos she viewed was generated; nor could a report have
been generated from investigative mode.

        Defendant was charged with first-degree robbery and weapons offenses.
Defendant moved to suppress the victim’s out-of-court identification, and the trial court
held an evidentiary hearing and then granted defendant’s motion. The State appealed. A
majority of the Appellate Division panel found the trial court properly determined that
eleven additional photos should have been preserved under Rule 3:11. However, the
majority vacated the order of suppression and remanded for the trial judge to consider the
full range of remedies in Rule 3:11(d). The Court granted the State’s motion for leave to
appeal the order of suppression, 233 N.J. 9 (2018), and defendant’s cross-motion for
leave to appeal the order of remand to reconsider the remedy, 233 N.J. 16 (2018).

HELD: Under the circumstances, the trial court properly suppressed the identification in
this case. The Court proposes revisions to Rule 3:11 to offer clearer guidance on which
photos officials should preserve when they use an electronic database. In addition, to
guard against misidentification, the Court places on the State the obligation to show that
an eyewitness was not exposed to multiple photos or viewings of the same suspect.

1. State v. Henderson reviewed concerns about the reliability of eyewitness identification
and considered multiple variables that “can affect and dilute memory and lead to
misidentifications.” 208 N.J. 208, 218 (2011). Among other variables, multiple viewings
of a suspect can affect the reliability of an identification through “mugshot exposure” and
“mugshot commitment.” Id. at 255-56. The Court in Henderson therefore observed that
“law enforcement officials should attempt to shield witnesses from viewing suspects or
fillers more than once.” Id. at 256. (pp. 13-16)



                                             2
2. In State v. Delgado, the Court required officers to “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. 48, 63 (2006). More recently, in Henderson, 208 N.J. at 252, and State v. Anthony,
237 N.J. 213, 227, 235 (2019), the Court reaffirmed those principles. (pp. 16-17)

3. The Court adopted an enhanced model jury charge in response to Henderson that
includes a proposed instruction on multiple viewings and other variables. Model Jury
Charge (Criminal), “Identification: In-Court and Out-of-Court Identifications” 6 (rev.
July 19, 2012). Jurors are told that they “may consider whether the witness viewed the
suspect multiple times during the identification process and, if so, whether that affected
the reliability of the identification.” Ibid. The Court also adopted a new court rule, Rule
3:11, in response to Delgado and Henderson. However, Rule 3:11 does not address in
detail what should be recorded when a witness views a database of digital photos or an
electronic mug book. (pp. 17-19)

4. The Appellate Division decisions on which the State relies preceded Henderson or the
date it went into effect and were decided before the adoption of Rule 3:11. Recent
technological developments complicate the analysis in those opinions, and none of those
cases considered Rule 3:11 or the problem of mugshot exposure. (pp. 19-22)

5. The Attorney General provided information about the use of electronic and hard copy
mug books throughout the State, which the Court recounts in detail. Notably, just 3 of
479 departments use only paper mug books, in contrast to the 145 departments that use
electronic or digital databases that contain photographs. (pp. 22-23)

6. Multiple views of the same person can create a risk of mugshot exposure -- the
possibility that a witness will make an identification based on a memory of an earlier
photo and not the original event. Henderson, 208 N.J. at 255-56. At pretrial hearings,
defendants are able to explore whether an eyewitness viewed the same suspect more than
once during identification procedures. Id. at 290. To guard against the risk of mugshot
exposure, the Court requires the following practice going forward: When relevant, the
State will have the obligation to demonstrate that an eyewitness was not exposed to
multiple photos or viewings of the same suspect. If the prosecution cannot satisfy that
burden, trial judges are to consider that factor when they assess whether the identification
evidence can be admitted at trial. If there is a “very substantial likelihood of irreparable
misidentification,” the evidence should be excluded. Id. at 289. (pp. 24-26)

7. Rule 3:11 needs to be updated. To allow for appropriate review of an out-of-court
identification procedure that used a digital database or paper mug book, administrators
should preserve (1) the photo of the suspect the witness selected, along with all other
photos on the same screen or page, and (2) any photo that a witness says depicts a person
who looks similar to the suspect, along with all other photos on that screen or page. The
                                             3
Court asks the Criminal Practice Committee to revise Rule 3:11 on an expedited basis.
The Court asks the Model Jury Charge Committee to amend the model charge on
multiple viewings and add language about the failure to preserve an identification
procedure. (pp. 26-28)

8. The Court delays the implementation of today’s ruling, aside from defendant Green,
until thirty days from the date the Court approves revisions to Rule 3:11, at which time
this decision will apply prospectively. (p. 28)

9. When the record of an identification “is lacking in important details,” and it was
feasible to preserve them, Rule 3:11(d) affords a judge discretion, consistent with
appropriate case law, to bar the evidence, redact part of it, and/or “fashion an appropriate
jury charge” if the evidence is admitted. Under the circumstances, the Court cannot find
that the trial judge abused his discretion when he suppressed the identification. The
Court does not suggest that any time a full record of an identification is not preserved, the
evidence must be excluded. Indeed, suppression should be the remedy of last resort, and
judges should explain why other remedies in Rule 3:11(d) are not adequate before barring
identification evidence. It is the confluence of factors in this appeal -- the witness’s use
of investigative mode during the identification process, the failure to preserve all but one
photo, and defendant’s history of multiple recent arrests, which would have been
captured in the HIDTA system the witness viewed -- that casts doubt on the reliability of
the identification process and supports the trial court’s conclusion. (pp. 28-30)

       The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

        JUSTICE SOLOMON, concurring in part and dissenting in part, concurs in
the majority’s ruling but not in its remedy. Justice Solomon explains that the trial court
discussed only whether the evidence should be suppressed and, in doing so, did not
measure the evidence in the record against the prevailing legal standard: whether
defendant had shown a “very substantial likelihood of irreparable misidentification”
under the circumstances. See Henderson, 208 N.J. at 289. Because a trial court must
make that determination before deciding whether the high threshold for suppression has
been vaulted, Justice Solomon would affirm the Appellate Division and remand to the
trial court to “probe what happened during the identification process” and meaningfully
assess the identification’s reliability. Anthony, 237 N.J. at 239.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE SOLOMON
filed a separate opinion, concurring in part and dissenting in part.




                                             4
       SUPREME COURT OF NEW JERSEY
           A-56/57 September Term 2017
                       080562


                State of New Jersey,

        Plaintiff-Appellant/Cross-Respondent,

                          v.

                     Kwesi Green,

       Defendant-Respondent/Cross-Appellant.

         On appeal from the Superior Court,
                Appellate Division.

       Argued                       Decided
   January 2, 2019               July 23, 2019


Lucille M. Rosano, Special Deputy Attorney
General/Assistant Prosecutor, argued the cause for
appellant/cross-respondent (Theodore N. Stephens, II,
Acting Essex County Prosecutor, attorney; Lucille M.
Rosano, of counsel and on the briefs).

Peter T. Blum, Assistant Deputy Public Defender, argued
the cause for respondent/cross-appellant (Joseph E.
Krakora, Public Defender, attorney; Peter T. Blum, of
counsel and on the briefs).

Lauren Bonfiglio, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Lauren
Bonfiglio, of counsel and on the brief).


                          1
            Lawrence S. Lustberg argued the cause for amici curiae
            Innocence Project, American Civil Liberties Union of
            New Jersey, and Innocence Network (Gibbons and
            American Civil Liberties Union of New Jersey
            Foundation, attorneys; Lawrence S. Lustberg, Farbod K.
            Faraji, and Alexander Shalom, on the brief).


        CHIEF JUSTICE RABNER delivered the opinion of the Court.


      In this case, a robbery victim identified her assailant from an extensive

database of digital photos. To assess the reliability of the identification

process requires an understanding of modern-day digital databases.

      In some respects, they are today’s equivalent of a paper mugshot book.

In other ways, digital systems are far superior, thanks to advances in

technology. The system used here, for example, allows officers to pare down a

large field of photos to match a witness’s physical description of a suspect.

When an eyewitness selects a photo that looks similar to the culprit, the system

can further narrow the field to display only other similar images. Officers can

also print copies of photos and generate a report of what a witness viewed.

      In this appeal, the witness was mistakenly allowed to review digital

photos through a feature of the database meant to be used by law enforcement

officers, not eyewitnesses. In addition, the police saved only the photo the

victim ultimately selected -- an image of defendant. Beyond that, the system

contained multiple photos of defendant because of his recent prior arrests,

                                        2
which raises concerns about mugshot exposure and its effect on the reliability

of identifications.

      We consider what took place in light of known risks associated with

eyewitness identification, as well as case law and a court rule that address how

identification procedures should be conducted and preserved. We also propose

revisions to Rule 3:11 to offer clearer guidance on which photos officials

should preserve when they use an electronic database to identify a suspect. In

addition, to guard against misidentification, we place on the State the

obligation to show that an eyewitness was not exposed to multiple photos or

viewings of the same suspect.

      Under the circumstances, we find that the trial court properly suppressed

the identification in this case. We therefore affirm and modify the judgment of

the Appellate Division majority, which largely upheld the trial court.

                                       I.

      To recite the facts, we draw heavily on the testimony at the suppression

hearing. On February 11, 2014, a woman was robbed at gunpoint while she

waited at a bus stop in Newark. A man approached her, pointed a black

handgun at her chest, demanded her pocketbook, and asked several questions

about other items she was carrying. The woman handed her bag to the man,

who walked away.


                                        3
       Soon after, the victim described her assailant to Newark Police Detective

Donald Stabile and another officer at the police station. She said the man was

about 5’7” tall, weighed between 130 and 150 pounds, had dark skin, a round

face, short hair, and no facial hair, and was in his early twenties. The victim

said she “got a very good look” at her assailant and would be able to identify

him.

       Based on her description, Detective Stabile input certain criteria into a

digital database of photos, from which the victim ultimately identified

defendant Kwesi Green. Because the identification is central to this appeal, we

describe in detail both the database and the process the police followed.

                                        A.

       The victim viewed photos through the HIDTA DataWorks

PhotoManager System (HIDTA system or database). HIDTA -- an

abbreviation for High Intensity Drug Trafficking Area -- is a federally funded

grant program that provides assistance to state and local law enforcement

agencies to combat drug trafficking in a coordinated manner. The Newark

Police Department participates in the New York/New Jersey HIDTA region,

which covers seventeen counties in New York and northern New Jersey,

including Essex County.

       The HIDTA system for the NY/NJ region has millions of digital photos,


                                         4
including photos of all adults arrested by the Newark Police Department. 1

When officers who participate in HIDTA process a defendant, they enter the

individual’s arrest photo in the PhotoManager System. If someone is arrested

in the relevant area more than once, the system will have multiple photos of

the individual -- one for each arrest.

      The HIDTA system has two modes: one for investigators and the other

for witnesses. “Investigative mode” -- as its name suggests -- is designed for

law enforcement officials. Investigators can search for a known suspect by

name, date of birth, or some other identifier; if the suspect’s identity is not

known, an officer can use investigative mode to narrow the field of photos for

a witness to view. Specifically, if a witness describes an unknown person’s

age, race, height, weight, hair color, facial features, or other pedigree

information, an officer can tailor a search to match those parameters. Should



1
  Detective Stabile, who testified he had used Newark’s HIDTA system
hundreds of times, said the database contained photos only of individuals
arrested by the Newark Police Department. A second witness, Robert Vitale,
testified the system had photos of individuals arrested in all seventeen
counties. At the time of the hearing, Mr. Vitale was employed by DataWorks
as the senior systems engineer for the New York City Police Department’s
PhotoManager system. He supervised the design, installation, and
maintenance of that system. Mr. Vitale testified that he was familiar with the
Newark HIDTA system and had spoken with DataWorks engineers responsible
for it, but he had not worked on a Newark terminal. To the extent there is a
discrepancy in the record about which photos are included in the Newark
system, the issue is not material to this appeal.

                                         5
the witness then select a photo and say the person in the photo resembles her

assailant, an investigator can highlight that photo and generate other similar

photos to review. Individual photos displayed or selected in investigative

mode can be printed, but no report of the session can be created.

      Using a feature for similar images or photos, an officer can also generate

a photo array -- a group of photos that look like a certain image -- in

investigative mode. As the array is created, particular photos will reappear

until the officer replaces them with other images. The final array can be

saved.

      In addition, an officer can click on a photo in investigative mode to

reveal a host of information about the person -- including his or her name and

the date and time of arrest.

      “Witness mode” is for witnesses to view digital images of mugshots. It

is similar to using an old-fashioned, paper mug book. A witness can signal

whether someone is the suspect or a possible suspect by telling the officer or,

as Mr. Vitale testified, by clicking under a photo. At the end of a session,

witness mode can generate a report of the photos displayed, how long each was

displayed, and whether the witness marked a photo, according to Mr. Vitale.

The report generates a log of identifier numbers, each of which links to a

single photo. It is also possible to print individual photos in witness mode.


                                        6
Mr. Vitale testified that the Newark Police Department had the ability to use

witness mode in February 2014 -- when the robbery took place.

        The two modes work in tandem. For example, an officer can first

narrow the universe of photos in investigative mode, based on a witness’s

description. Next, the officer can create a session in witness mode for the

witness to examine the images. If the witness identifies a suspect, the session

is complete, and a report can be generated. If the witness instead identifies a

photo that looks similar to the suspect, the officer can close out the session,

switch back to investigative mode, and search for additional similar photos to

narrow the field further. The witness can then examine the more limited group

of photos as part of a new session in witness mode. Each session from witness

mode can be preserved, and officers can print individual photos from either

mode.

                                         B.

        As noted earlier, Detective Stabile interviewed the victim at the police

station shortly after the armed robbery. He then entered various parameters in

the HIDTA system based on the description of the assailant’s height, weight,

age, skin color, and hair. The search was done in investigative mode. Without

switching to witness mode, the detective set the witness up at a computer

monitor, explained how to scroll through pages of photos, with six on a screen


                                         7
at a time, and asked her to notify him immediately if she saw her assailant or

anyone who looked similar.

      According to the detective, the victim looked through the narrowed field

of digital photos for several minutes. She then told the detective that one of

the photos looked like the assailant. The detective did not know how many

photos she had viewed and did not print the particular photo she flagged. Still

in investigative mode, the detective narrowed the field to images similar to the

one the witness selected. Within a few seconds, she identified defendant from

the first page of photos she viewed next. The detective could not recall if the

photo the witness had said looked similar to her assailant was repeated among

the six photos from which she made her identification.

      The detective did not print the six photos from the final screen; he

printed only the single photo the victim identified as her assailant. No report

of the photos she viewed was generated; nor could a report have been

generated from investigative mode.

                                       C.

      The grand jury returned an indictment that charged defendant with first-

degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant moved to suppress the


                                        8
victim’s out-of-court identification, and the trial court held an evidentiary

hearing at which Detective Stabile and Mr. Vitale testified. Afterward, the

court suppressed the identification.

      The court found the police had conducted an identification procedure

within the meaning of Rule 3:11. Under the Rule and relevant case law, the

court concluded that officers should have preserved the image the witness said

looked like the suspect, the five other images displayed on that screen, a s well

as the final six images that included defendant’s photo -- a total of eleven

photos beyond the one the officer preserved. The court noted it was feasible to

print all eleven images.

      In light of the record developed at the hearing, the trial judge

distinguished State v. Joseph, 426 N.J. Super. 204 (App. Div. 2012). Joseph

involved a witness who reviewed photos in the HIDTA database. Id. at 213.

The Appellate Division in that case concluded that law enforcement’s failure

to preserve all of the photos the victim viewed was “not fatal to the admission

of an out-of-court identification.” Id. at 223.

      Joseph, in turn, relied on cases in which witnesses viewed random

groups of photos in a paper mug book and on a computer screen. Ibid.

(discussing State v. Janowski, 375 N.J. Super. 1, 6-8 (App. Div. 2005); State v.

Ruffin, 371 N.J. Super. 371, 395 (App. Div. 2004)). By contrast, the trial


                                        9
court here found, the “application of the HIDTA system [is] not random.” As

the court explained, the detective entered search parameters from the victim’s

general description to generate a series of images, and later narrowed the

universe of photos when the witness selected an image that looked similar to

her assailant. Once the parameters were entered, “[i]t was no longer random.”

Moreover, the court observed, “[a]ny suggestion” the process was “random

end[ed] at the point where the witness said that looks like him and the officer

hit [the] similar” function.

      Because of the officer’s failure to preserve the other eleven photos, the

court suppressed the out-of-court identification. The trial court’s ruling did

not extend to any in-court identification at trial. 2

      The State appealed. A majority of the Appellate Division panel

concluded that “the plain language” of Rule 3:11 “requires that when digital

photos are shown during an identification procedure, a record of the photos

used must be made.” The majority observed that its interpretation was

consistent with the history of the Rule, the Court’s “longstanding policy” to



2
  The Innocence Project and related amici voice concerns about the suggestive
nature of in-court identifications that follow an earlier identification
procedure. Because the issue has not been raised by the parties, we do not
address it at this time. See State v. O’Driscoll, 215 N.J. 461, 479 (2013);
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91 N.J. 38, 48-
49 (1982).

                                          10
provide “broad discovery” to criminal defendants, and “concerns about

identification procedures” discussed in State v. Delgado, 188 N.J. 48 (2006),

and State v. Henderson, 208 N.J. 208 (2011). Among other things, the

majority pointed to the risk of mugshot exposure from multiple views of

photos of the same person.

      The majority found the trial court properly determined that eleven

additional photos should have been preserved under Rule 3:11. However, the

majority vacated the order of suppression and remanded for the trial judge to

consider the full range of remedies in Rule 3:11(d).

      The dissenting Appellate Division judge relied on Ruffin, Janowski, and

Joseph to reach a contrary result. It also observed that “there is no police

suggestiveness to be counteracted” when victims view mug books for unknown

suspects. In the dissent’s view, Rule 3:11 does not “address the use of . . .

computerized mug books to search for an unknown perpetrator”; nor does the

Rule’s history. To require the preservation of such photos, the dissent added,

would “needlessly burden” law enforcement.

      We granted the State’s motion for leave to appeal the order of

suppression, 233 N.J. 9 (2018), and defendant’s cross-motion for leave to

appeal the order of remand to reconsider the remedy, 233 N.J. 16 (2018). We

also granted leave to appear as amici curiae to the Attorney General and to the


                                       11
Innocence Project, the American Civil Liberties Union of New Jersey, and the

Innocence Network (collectively, the Innocence Project), which filed a joint

brief.

         After oral argument, we asked for supplemental briefing about the use of

electronic and hard copy mug books by law enforcement throughout the State.

We also asked for details about defendant’s prior arrest record.

                                         II.

         The State argues that Rule 3:11 does not apply when the HIDTA system

is used to investigate an unknown suspect. As a result, the State submits, the

Rule does not require the preservation of the additional photographs the trial

court ordered. In the alternative, if the Rule was violated, the State contends

that a properly tailored jury instruction, not suppression, is the appropriate

remedy.

         The Attorney General echoes those arguments. He contends that Rule

3:11 does not apply to the review of random mugshots to try to locate a

suspect. Law enforcement must preserve only the photo the witness identified,

the Attorney General argues.

         Defendant submits that case law, Rule 3:11, and “fundamental notions of

justice” required law enforcement to preserve the photos used in the HIDTA

system. In addition, defendant argues that the trial court properly suppressed


                                         12
the identification because the use of the HIDTA system was “prone to create a

mugshot exposure problem” and the State could not reconstruct “the lost trail

of photos.”

       The Innocence Project similarly contends that Rule 3:11 applies to out-

of-court identifications made with the use of the HIDTA database, even when

the police do not have a known suspect. Amicus also maintains that social

science principles about the reliability of eyewitness identification evidence

apply with equal force to law enforcement’s use of the HIDTA database.

Finally, the Innocence Project submits that suppression is appropriate here.

                                       III.

                                       A.

       This appeal raises questions about identification evidence in the context

of electronic mug books. Henderson reviewed concerns about the reliability of

eyewitness identification evidence more broadly. The Court discussed how

“memory is malleable” and observed that “eyewitness misidentification is the

leading cause of wrongful convictions” nationwide. Henderson, 208 N.J. at

218.

       Henderson considered multiple variables that “can affect and dilute

memory and lead to misidentifications.” Ibid. The factors include “system

variables” that law enforcement can control, like the use of a lineup or a mug


                                       13
book, and “estimator variables” that are outside the control of the legal system,

like lighting and memory decay. See ibid.

      The Court ultimately determined that the then-existing standard to

evaluate eyewitness identifications -- derived from Manson v. Brathwaite, 432

U.S. 98 (1977), and State v. Madison, 109 N.J. 223 (1988) -- did “not offer an

adequate measure for reliability or sufficiently deter inappropriate police

conduct.” Henderson, 208 N.J. at 218. As a result, the Court “revised the

legal framework for the admission of eyewitness identification evidence .”

State v. Anthony, 237 N.J. 213, 226 (2019). Today, if defendants can present

some evidence of suggestiveness related to a system variable, they are entitled

to a hearing to explore all relevant factors and challenge the admission of the

identification evidence. Ibid. (citing Henderson, 208 N.J. at 288-93).

      Among other variables, the Court has recognized that multiple viewings

of a suspect can affect the reliability of an identification. Henderson, 208 N.J.

at 255. With “successive views of the same person,” it can be “difficult to

know whether the later identification stems from a memory of the original

event or a memory of the earlier identification procedure.” Ibid.

      The problem can surface when a witness uses mugshot books to make an

identification. If a book contains multiple arrest photos of the same person,

there is a risk of “mugshot exposure.” See ibid. That happens, for example,


                                       14
“when a witness initially views a set of photos and makes no identification, but

then selects someone -- who had been depicted in the earlier photos -- at a later

identification procedure.” Ibid. Multiple studies have revealed that “although

15% of witnesses mistakenly identified an innocent person viewed in a lineup

for the first time, that percentage increased to 37% if the witness had seen the

innocent person in a prior mugshot.” Id. at 255-56 (citing Kenneth A.

Deffenbacher et al., Mugshot Exposure Effects: Retroactive Interference,

Mugshot Commitment, Source Confusion, and Unconscious Transference, 30

L. & Hum. Behav. 287, 299 (2006)).

      “Mugshot commitment” is a related concern. It “occurs when a witness

identifies a photo that is then included in a later lineup procedure. Studies

have shown that once witnesses identify an innocent person from a mugshot, ‘a

significant number’ then ‘reaffirm[] their false identification’ in a later lineup

-- even if the actual target is present.” Id. at 256 (quoting Gunter Koehnken et

al., Forensic Applications of Line-Up Research, in Psychological Issues in

Eyewitness Identification 205, 219 (Siegfried L. Sporer et al. eds., 1996)).

      Because mugshot exposure and commitment can affect the reliability of

an identification and heighten the risk of misidentification, the Court in

Henderson observed that “law enforcement officials should attempt to shield

witnesses from viewing suspects or fillers more than once.” Ibid. Henderson,


                                        15
however, did not specifically address electronic mug books or digital databases

of arrest photos.

      Henderson is consistent with guidance that the U.S. Department of

Justice issued years earlier. In its 1999 guide for law enforcement on

eyewitness evidence, the Justice Department discussed how investigators

should prepare mug books. Nat’l Inst. of Justice, U.S. Dep’t of Justice,

Eyewitness Evidence: A Guide for Law Enforcement 17-18 (1999). The

Department stressed that mug books should be composed “in such a manner

that individual photos are not suggestive.” Id. at 17. To that end, the

Department stated that “preparer[s] should . . . [e]nsure that only one photo of

each individual is in the mug book.” Ibid.

                                       B.

      In Anthony, we recently reviewed another important topic: the need to

make a record of identification procedures. Anthony traced the issue through a

line of cases that dates back decades. In 1972, in State v. Earle, this Court

explained that

            enforcement authorities should . . . make a complete
            record of an identification procedure if it is feasible to
            do so . . . . The identity of persons participating in a
            [live] lineup should be recorded, and a picture should
            be taken if it can be. If the identification is made or
            attempted on the basis of photographs, a record should
            be made of the photographs exhibited. We do not say

                                       16
            a failure hereafter to follow such procedures will itself
            invalidate an identification, but such an omission, if not
            explained, should be weighed in deciding upon the
            probative value of the identification, out-of-court and
            in-court.

            [60 N.J. 550, 552 (1972).]

      In Delgado, the Court required law enforcement officers to “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. More recently, in

Henderson, 208 N.J. at 252, and Anthony, 237 N.J. at 227, 235, the Court

reaffirmed the principles outlined in Delgado.

      Those earlier decisions, however, did not focus specifically on what

must be preserved when a witness makes an identification from a paper or

electronic mug book.

                                         C.

      The Court adopted an enhanced model jury charge in response to

Henderson. It includes a proposed instruction on multiple viewings and other

variables. The instruction informs the jury that multiple viewings of the same

person increase the risk of mistaken identification. Model Jury Charge

(Criminal), “Identification: In-Court and Out-of-Court Identifications” 6 (rev.

July 19, 2012). As a result, jurors are told that they “may consider whether the

                                         17
witness viewed the suspect multiple times during the identification process

and, if so, whether that affected the reliability of the identification.” Ibid.

      The Court also adopted a new court rule in response to Delgado and

Henderson. See R. 3:11; see also Anthony, 237 N.J. at 229-30 (tracing the

Rule’s history). We reviewed Rule 3:11 at length in Anthony and focused on

law enforcement’s obligation to record the dialogue between a witness and an

officer. 237 N.J. at 230-34.

      The focus in this case is on how to record the identification process

when a witness selects a suspect from a series of photos. Rule 3:11 addresses

the topic in the following two sections:

             (a)    Recordation.     An out-of-court identification
             resulting from a photo array, live lineup, or showup
             identification procedure conducted by a law
             enforcement officer shall not be admissible unless a
             record of the identification procedure is made.

             ....

             (c)    Contents.    The record of an out-of-court
             identification procedure is to include details of what
             occurred at the out-of-court identification, including
             the following:

             ....

                    (5) if a photo lineup, the photographic array, mug
                    books or digital photographs used . . . .


                                         18
As is apparent from its text, the Rule does not address in detail what should be

recorded when a witness views a database of digital photos or an electronic

mug book.

      Rule 3:11 also sets forth a number of remedies when the record is

deficient:

             If the record that is prepared is lacking in important
             details as to what occurred at the out-of-court
             identification procedure, and if it was feasible to obtain
             and preserve those details, the court may, in its sound
             discretion and consistent with appropriate case law,
             declare the identification inadmissible, redact portions
             of the identification testimony, and/or fashion an
             appropriate jury charge to be used in evaluating the
             reliability of the identification.

             [R. 3:11(d).]

                                        D.

      The State relies on several Appellate Division decisions that preceded

Henderson or the date it went into effect, and were decided before the adoption

of Rule 3:11. The rulings addressed the use of paper or electronic mug books

to search for an unknown suspect and, in each case, the Appellate Division

concluded the police needed to preserve only the photo of the culprit the

victim selected.

                                         1.

      In State v. Ruffin, a burglary victim looked through two-and-a-half

                                        19
loose-leaf binders of arrest photos of black males -- more than 400 photos

altogether. 371 N.J. Super. at 378-79. The photos were arranged randomly;

“[t]here was no separation based on height, weight, hair style, facial hair or

complexion.” Id. at 379, 395. Because the police did not preserve the binders,

the trial court excluded the victim’s out-of-court identification. Id. at 380.

      The Appellate Division reversed. The court observed that the process

“was investigatory, not confirmatory,” and that the presentation of the random

photographs was “neutral.” Id. at 395. The Appellate Division added that it

would be “cumbersome” to require the police to preserve all of the photos the

witness viewed, which “would also place an unnecessary burden on” the use of

a “proper law enforcement tool for no justifiable purpose.” Ibid.

      In State v. Janowski, a robbery victim identified an unknown assailant

from 36 to 60 arrest photos displayed on a computer screen. 375 N.J. Super. at

4-5. The photos depicted white men “within the age range the victim

provided.” Id. at 5.

      The Appellate Division rejected the trial court’s finding that the photos

constituted an array, which must be preserved in full. Id. at 5, 7. Instead, the

Appellate Division considered each screen “the equivalent of a page of a mug

shot book.” Id. at 7. Relying on Ruffin, the court held that the State’s failure

to retain all of the “randomly selected photographs, kept for the purpose of


                                        20
investigation, not confirmation,” and shown to the victim to try to find a

suspect, was “not fatal to the admission of the out-of-court identification.” Id.

at 8-9.

      More recently, in State v. Joseph, three victims robbed at gunpoint in

Newark identified an unknown assailant from the same HIDTA database used

in this case. 426 N.J. Super. at 212-15. The Court applied the same reasoning

used in Ruffin and Janowski and concluded the police needed to preserve only

the photo the victims selected. Id. at 223.

                                        2.

      Recent developments complicate the analysis in those opinions. First,

developments in technology muddy the clear-cut divide earlier decisions relied

on between an examination of random photos in a mug book, which

historically did not have to be preserved, and the use of potentially suggestive

photo arrays, which plainly did.

      None of the decisions, even Joseph, delve into the features of the

HIDTA PhotoManager System; presumably, the record in Joseph did not

include the details before the Court today. Yet testimony at the evidentiary

hearing reveals that, unlike a paper mug book, the HIDTA system offers more

than a random, digital assortment of photos.

      In this case, a detective first entered information about the suspect’s


                                       21
race, age, weight, and appearance into the database. The victim then selected a

photo of someone that she believed looked like the robber. Based on her

feedback, the detective further narrowed the search results to look for other

similar images. By that point at least, the search was no longer random. Nor

was it a photo array with a known suspect. The identification process here,

made possible by a more sophisticated computer program, lies somewhere

along the continuum between random mugshots in a book and potentially

suggestive photo arrays with a known suspect.

      Second, as noted above, all three Appellate Division cases preceded

developments in the case law and court rules. Ruffin and Janowski predated

Henderson, and Joseph properly did not apply Henderson retroactively. See

Joseph, 426 N.J. Super. at 225 n.5. All three decisions preceded Rule 3:11.

As a result, none of the cases considered the Rule or the problem of mugshot

exposure, which the HIDTA system presents. See Henderson, 208 N.J. at 255-

56.

                                      IV.

      After oral argument, the Court asked the Attorney General to provide

information about the use of electronic and hard copy mug books throughout

the State. The Attorney General surveyed 479 “police departments,” including

every municipal police department, the Delaware River Port Authority, Morris


                                       22
County Park Police, New Jersey Human Services, New Jersey Transit,

Palisades Interstate Parkway, and campus police. The survey revealed the

following:

         6 of 479 police departments use hard copy or paper mug books as

             part of a department’s identification procedure. Three of those

             departments use only hard copy or paper mug books.

         145 of 479 police departments use electronic or digital databases

             that contain photographs. The rest do not use that type of

             identification procedure.

         22 of the 145 police departments that use electronic or digital

             databases use the HIDTA Digital PhotoManager system. The

             other departments use any of more than two dozen different

             systems.

         Neither the State Police nor the Division of Criminal Justice use

             paper mug books or digital databases as part of their identification

             procedures.

         No County Prosecutor’s office uses paper mug books; ten use

             various digital databases, including the HIDTA Digital

             PhotoManager System.



                                         23
                                        V.

                                        A.

      Because of the nature of the HIDTA system, we return to the issue of

multiple viewings of the same person during an identification procedure. Mug

books are made up of arrest photos, and if an individual has been arrested

more than once, multiple photos of the person will appear in both a paper mug

book and a digital database.3

      As noted earlier, multiple views of the same person can create a risk of

mugshot exposure -- the possibility that a witness will make an identification

based on a memory of an earlier photo and not the original event. Henderson,

208 N.J. at 255-56. Research reviewed in Henderson showed that mistaken

identifications increased from 15 to 37% when a witness had seen a photo of

an innocent person in a prior mugshot. Ibid. (citing Deffenbacher, 30 L. &

Hum. Behav. at 299). In light of those results, it is not surprising that the

Department of Justice issued guidance to law enforcement to “[e]nsure that

only one photo of each individual is in the mug book.” Nat’l Inst. of Justice at

17.

3
   In the HIDTA system’s investigative mode, if a witness selects a photo that
looks like a suspect, and an investigator narrows the field to similar images, it
is unclear from the record whether the look-alike photo will reappear. In this
case, the detective did not recall whether the photo that looked similar to the
suspect appeared twice.

                                        24
        At pretrial hearings, defendants are now able to explore whether an

eyewitness viewed the same suspect more than once during identification

procedures. Henderson, 208 N.J. at 290. To guard against the risk of mugshot

exposure, we exercise our supervisory powers under Article VI, Section 2,

Paragraph 3 of the State Constitution to require the following practice going

forward: When relevant, the State will have the obligation to demonstrate that

an eyewitness was not exposed to multiple photos or viewings of the same

suspect. See id. at 254, 270-71 (exercising supervisory powers relating to the

identification process); Delgado, 188 N.J. at 63 (same). If the prosecution

cannot satisfy that burden, trial judges are to consider that factor when they

assess whether the identification evidence can be admitted at trial. If there is a

“very substantial likelihood of irreparable misidentification,” the evidence

should be excluded. Henderson, 208 N.J. at 289 (citing Manson, 432 U.S. at

116).

        We recognize the above approach will create a practical challenge for

the few departments that rely solely on paper or hard copy mug books. That

said, only 3 of nearly 500 departments statewide still use that method

exclusively. The same obligation will apply to the 145 departments that use

electronic databases. In that regard, the record in this case shows how

sophisticated the HIDTA PhotoManager System is. It can narrow a field of


                                        25
photos based on a suspect’s age, height, weight, skin color, hair, and facial

hair. A defendant’s name and an identifier number are attached to each photo

as well. It stands to reason, then, that technical solutions can be found to

eliminate multiple photos of the same person in commercially available

electronic databases. 4

      Digital databases already include measures to prevent witnesses from

gaining access to extraneous, possibly prejudicial information about a person’s

arrest history. With the benefit of proper training, law enforcement officers

should use features like the HIDTA PhotoManager System’s witness mode

when they ask witnesses to view digital or electronic mug books.

                                        B.

      We note as well that Rule 3:11 needs to be updated. The parties present

thoughtful views about the text of the current Rule. Those arguments highlight

the need for greater clarity in this area. We rely on our rulemaking authority,

N.J. Const. art. VI, § 2, ¶ 3, to offer clearer guidance about the type of

evidence law enforcement should preserve when a witness identifies a suspect

4
  DataWorks’s current website says its “system can be configured to not allow
multiple images of an individual to a lineup.” Digital PhotoManager,
DataWorks Plus, http://www.dataworksplus.com/dpm.html (last visited June
27, 2019). The site does not say how that is accomplished or how long the
feature has been available. Testimony at the suppression hearing did reveal
that a log of unique identifier numbers can be generated in witness mode, and
that each number is linked to an individual photo.

                                        26
from a digital or electronic database.5 For that reason, we do not address at

length certain arguments raised by the parties about the meaning of the current

Rule. See Anthony, 237 N.J. at 230 & n.2.

      To allow for appropriate review of an out-of-court identification

procedure that used a digital database or paper mug book, administrators

should preserve (1) the photo of the suspect the witness selected, along with all

other photos on the same screen or page, and (2) any photo that a witness says

depicts a person who looks similar to the suspect, along with all other photos

on that screen or page. That requirement will establish a record of the photos

viewed at pivotal moments: when the witness meaningfully narrows the field

of images and ultimately makes a final selection. It will also allow all parties

and the court to assess with care the nature of the identification process and

any suggestive aspects of the process. Aside from the risk of multiple

viewings addressed above, persuasive reasons have not been presented to

require that every photo reviewed during the entire identification procedure be

preserved.

      We ask the Criminal Practice Committee to revise Rule 3:11 consistent

with the above concepts. We also ask the Model Jury Charge Committee to

5
  We use the terms “digital” and “electronic” interchangeably in this opinion.
The opinion and any revisions to Rule 3:11 should be interpreted to encompass
any similar medium as well.

                                       27
amend the model charge on multiple viewings and add language about the

failure to preserve an identification procedure. See id. at 235.

      We recognize it will take time for the Committee to propose changes to

the Rule. Likewise, the Attorney General will need time to disseminate

guidance to the law enforcement community about the proper use of digital

databases, including their different modes, and the specific photos that must be

preserved. Aside from defendant Green, we therefore delay the

implementation of today’s ruling until thirty days from the date the Court

approves revisions to Rule 3:11, at which time this decision will apply

prospectively. See Henderson, 208 N.J. at 302 (applying ruling prospectively

because of the effect on the administration of justice). We respectfully ask the

Committee to propose revisions on an expedited basis.

                                        VI.

      We next consider the remedy in this case. The detective who

administered the identification procedure preserved only one photo -- the one

the victim identified as her assailant. The trial court concluded the detective

should have preserved the eleven additional photos described above.

      In our judgment, the manner in which the detective conducted the

identification procedure is also problematic. It was a mistake for the victim to

be allowed to view photos of possible suspects through the HIDTA system’s


                                        28
investigative mode. As noted above, that mode is designed for investigators to

narrow a large field of photos based on a witness’s description and feedback.

      Witnesses should not examine photos in investigative mode for a number

of reasons. That mode allows eyewitnesses to access details that witnesses

should not see, like a defendant’s name and the date and place of arrest. It

repeats individual photos when an array is created. And it cannot generate a

report of what an eyewitness viewed. By contrast, witness mode limits access

to potentially suggestive information; allows witnesses to examine suitable and

narrowed fields of photos; and enables administrators to keep a record of the

session.

      Finally, we note the real possibility of mugshot exposure in this case.

The armed robbery took place in Newark on February 11, 2014. In the four

months leading up to that date, defendant was arrested twice in Newark as an

adult. Photos from both arrests would have been part of Newark’s HIDTA

system, which the victim viewed. In addition, the detective could not recall

whether the photo the witness said looked like the culprit appeared a second

time on the screen that included defendant Green’s photo.

      When the record of an identification “is lacking in important details,”

and it was feasible to preserve them, Rule 3:11(d) affords a judge discretion,

consistent with appropriate case law, to bar the evidence, redact part of it,


                                        29
and/or “fashion an appropriate jury charge” if the evidence is admitted. Under

the circumstances, we cannot find that the trial judge abused his discretion or

ruled in a manner that was inconsistent with appropriate case law when he

suppressed the identification.

      We do not suggest that any time a full record of an identification is not

preserved, the evidence must be excluded. To be clear, we do not adopt a per

se rule to that effect. See Anthony, 237 N.J. at 239; Henderson, 208 N.J. at

303. Indeed, suppression should be the remedy of last resort, and judges should

explain why other remedies in Rule 3:11(d) are not adequate before barring

identification evidence. It is the confluence of factors in this appeal -- the

witness’s use of investigative mode during the identification process, the

failure to preserve all but one photo, and defendant’s history of multiple recent

arrests in Newark, which would have been captured in the HIDTA system the

witness viewed -- that casts doubt on the reliability of the identification

process and supports the trial court’s conclusion.

                                        VII.

      For the reasons outlined above, the judgment of the Appellate Division

is affirmed as modified.




                                         30
      JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
and TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE
SOLOMON filed a separate opinion, concurring in part and dissenting in part.




                                      31
                              State of New Jersey,

                     Plaintiff-Appellant/Cross-Respondent,

                                        v.

                                  Kwesi Green,

                    Defendant-Respondent/Cross-Appellant.


          JUSTICE SOLOMON, concurring in part and dissenting in part.


      I agree with the majority that there are several reasons why the

detective’s identification procedure was problematic. I also agree that the

identification record was “lacking in important details.” R. 3:11(d). However,

I cannot agree that the trial judge complied with Rule 3:11 and applicable case

law in suppressing the identification. Because this Court’s jurisprudence

makes clear that a remand is appropriate here, and not suppression of the

identification, I concur in the majority’s ruling but not in its remedy.

      When the record of an identification “is lacking in important details,”

and it was feasible to preserve them, Rule 3:11(d) affords a judge discretion,

consistent with appropriate case law, to bar the evidence, redact part of it,

“and/or fashion an appropriate jury charge” if the evidence is admitted. With

that in mind, this Court has consistently rejected the invitation to “create[]

bright-line rules that call for the ‘suppression of reliable evidence any time a

                                         1
law enforcement officer makes a mistake.’” State v. Anthony, 237 N.J. 213,

239 (2019) (quoting State v. Henderson, 208 N.J. 208, 303 (2011)). We have

done so for good reason; the threshold for suppression has always been high

and remains so today. See ibid.; see also Henderson, 208 N.J. at 303. Unless

a defendant “demonstrate[s] a very substantial likelihood of irreparable

misidentification,” Henderson, 208 N.J. at 289, it must be left “for the jury to

decide whether to credit a witness’ account, with the benefit of the augmented

model jury charge,” Anthony, 237 N.J. at 239. As such, remand hearings can

serve an important purpose -- to “probe what happened during the

identification process [] and end with evidence being excluded if it is

unreliable, and admitted otherwise.” Ibid.

      Here, the trial court did not address the full range of possible remedies;

it discussed only whether the evidence should be suppressed. In doing so, the

court also did not measure the evidence in the record against the prevailing

legal standard: whether defendant Kwesi Green had shown a “very substantial

likelihood of irreparable misidentification” under the circumstances. See

Henderson, 208 N.J. at 289. Because a trial court must make that

determination before deciding whether the high threshold for suppression has

been vaulted, I would affirm the Appellate Division and remand to the trial

court to “probe what happened during the identification process” and


                                        2
meaningfully assess the identification’s reliability. Anthony, 237 N.J. at 239.

In my view, suppression of the identification, particularly in light of the trial

court’s limited findings here, may preclude the jury from performing its

function.




                                         3
