In State v. Michael Guerino (Ocean County) an appellate panel examined the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor’s office representatives who accompanied her. Defendant argued this event corrupted the victim’s memory, rendering her subsequent in-court identification inadmissible.
The State did not seek to introduce evidence of the hallway event at trial and characterized it as “trial prep.” The court nonetheless concluded it was an out-of-court “identification procedure conducted by a law enforcement officer” within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
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