cdTOCtest

Where an in-court identification is challenged as the
tainted product of an improper out-of-court identifica-
tion procedure, the trial court is required to reach the
issue of taint only if it finds that the out-of-court
procedure was both unduly suggestive and created a
substantial likelihood of misidentification. State v.
Cooper, 165 N.J. Super. 57, 66 (App. Div. 1976); see also
State v. Catlow, 206 N.J. Super. 186 (App. Div. 1985),
certif. denied 103 N.J. 465 (1986); State v. Hickman, 204
N.J. Super. 409 (App. Div. 1985) (where the evidence as
a whole did not lead forcefully to the conclusion that
either the out-of-court or in-court identifications were
not those of the eye witnesses but were imposed by
impermissibly suggestive police action thereby requiring
exclusion); State v. Davis, 204 N.J. Super. 181 (App. Div.
1985) (irrespective of any allegedly “tainted” identifica-
tion, the in-court identification would not have been
rendered excludable since the witness had an
independent source for his in-court identification not
derived from the post arrest identification). Where the
out-of-court identification is ruled to be improper, the
in-court identification will nonetheless be admissible if it
is based upon the witness’ observations of defendant at
the time of the criminal event and is not the product of
the impermissibly suggestive prior identification. State v.
Edge, 57 N.J. 580, 587 (1971); State v. Cooper, 165 N.J.
Super. at 66.

A Wade hearing is a preliminary inquiry to determine
the admissibility of an identification. United States v.
Wade, 388 U.S. 218 (1967). To secure this hearing, a
defendant must make a threshold showing of an
impermissibly suggestive identification, or a violation of
his Sixth Amendment right to counsel. State v. Ortiz, 203
N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335
(1985). A Wade hearing should be granted if defendant
presents “some evidence of impermissible suggestive-
ness” in the identification process. State v. Rodriquez, 264
N.J. 261, 269 (App. Div. 1993), aff’d o.b. 135 N.J. 3
(1994)(citing State v. Ortiz, 203 N.J. Super. at 522).

The trial court has the discretion to deny a Wade
hearing request unless the defendant makes a threshold
showing of some evidence of impermissible suggestivity
in the identification procedure; defendant’s demand is
not sufficient in the absence of such a proffer. State v.
Long, 119 N.J. 439 (1990); State v. Rodriguez, 264 N.J.
Super. 261, 269 (App. Div.), aff’d o.b. 135 N.J. 3 (194);
State v. Ortiz, 203 N.J. Super. at 522; State v. Rodriguez,
262 N.J. Super. 564 (App. Div. 1993); see also State v.
Cherry, 289 N.J. Super. 503 (App. Div. 1996) (the failure
to conduct a Wade hearing does not mandate reversal).

A trial court’s ruling upon the conclusion of a Wade

hearing admitting identification evidence is “entitled to

a very considerable weight” on appeal. State v. Farrow, 61

N.J. 434, 451 (1972), cert. denied, 410 U.S. 937 (1973);

State v. Scott, 236 N.J. Super. 264, 267 (App. Div. 1989).

It should not be disturbed so long as the ruling

reasonably could have been reached on the evidence

presented. State v. Ford, 79 N.J. 136 (1979), rev’g on

dissent, 165 N.J. Super. 249, 254 (App. Div. 1978) (and

cases cited therein). At the hearing, defendant must

prove by a preponderance of the evidence that the pretrial

identification procedure was so suggestive as to result in

a substantial likelihood of misidentification. State v.

Santoro, 229 N.J. Super. 501, 504 (App. Div. 1990).

As to problems concerning in-court and out-of-court

identification procedures, see State v. Grice, 109 N.J. 379

(1988) (where the Court affirmed the admissibility of the

out-of-court identifications made within hours of the

commission of the crimes under reliable circumstances

by the victim and the arresting officer); State v. Catlow,

206 N.J. Super. 186 (App. Div. 1985), certif. denied, 103

N.J. 495 (1986); State v. Davis, 204 N.J. Super. 181

(App. Div. 1985), certif. denied, 104 N.J. 378 (1986);

State v. Ortiz, 203 N.J. Super. 519 (App. Div. 1985),

certif. denied, 102 N.J. 335 (1985).

Neither the Confrontation Clause of the Sixth

Amendment nor Federal Rule of Evidence 802 is violated

by the admission of an identification statement of a

witness who is unable, because of a memory loss, to testify

concerning the basis for the identification. United States

v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951

(1988).

In an identification case where a testifying witness

has made a prior identification of a party “under

circumstances precluding unfairness or unreliability,” see

State v. Williams, 80 N.J. 472 (1979), the witness’s

statement is not hearsay and is therefore admissible. State

v. Johnson, 216 N.J. Super. 588 (App. Div. 1987). Expert

testimony offered to prove that eyewitness testimony is

unreliable is not admissible. State v. Long, 119 N.J. 439

(1990); but cf. State v. Gunter, 231 N.J. Super. 34 (App.

Div. 1989).

II. PROCEDURES

A. Lineups

The admissibility of an identification arising from a

lineup procedure is to be judged by the totality of the

circumstances. If, under the totality of the circumstances,