crime and as certain in his identification. State v. Nunez,
209 N.J. Super. 127 (App. Div. 1986).
A photographic array that depicted defendant and
others in orange prison attire should have been excluded
from theft trial on ground that its probative value to the
issue of identification was substantially outweighed by
the danger of undue prejudice; the prison attire would
draw the jury’s attention to the fact that the defendant
had previously been arrested and incarcerated, and no
instruction could effectively and realistically neutralize
the prejudice to defendant. State v. Burton, 309 N.J.
Super. 280 (App. Div. 1998); see also State v. Madison,
109 N.J. 223 (1988)(showing victim 38 color
photographs, 13 or 14 of which depicted defendants as
the center of attention at a birthday party in his honor,
was impermissibly suggestive); State v. Taplin, 230 N.J.
Super. 95 (App. Div. 1988) (“Mug shot” display should
not have been introduced in evidence where defendant
elected not to testify because of his prior criminal record
and agreed to stipulate that he was the person at scene of
crime); State v. Onysko, 226 N.J. Super. 599 (App. Div.
1988) (Defendant, charged with burglary, is entitled to
a new trial because his “mug shot” used in photo lineup
was admitted into evidence and contained information
on reverse side including defendant’s use of an alias and
listing his occupation as a “burglar”); State v. Cribb, 281
N.J. Super. 156 (App. Div. 1995) (Appellate Division
reversed conviction because the detective who arranged
the photographic identification testified in a way that
indicated to the jury that defendant was the only
legitimate suspect in the photo array and implied that
defendant was known to the police, and the victim
referred to the photographs as “mug shots.”).
D. Voice Identifications (See also, VOICEPRINTS, this
Digest)
All the principles that apply to visual identification
apply to voice identifications. State v. Gallagher, 286 N.J.
Super, 1 (App. Div. 1995), certif. denied, 146 N.J. 519
(1996). State v. Johnson, 138 N.J. Super. 579 (App. Div.
1976), certif. denied, 71 N.J. 340 (1976).
Testimony by a witness that he recognized defendant
by his voice is generally admissible provided the witness
has an adequate basis for comparison of defendant’s voice
with the voice he identifies as that of the accused. The
hazards to the trustworthiness of identification of a voice
through auditory senses, however, are even more
apparent than those to the trustworthiness of eyewitness
identification. Therefore, it is incumbent upon the trial
court to conduct a voir dire in order to determine whether
an out-of-court voice identification was so impermissibly
suggestive as to give rise to a very substantial likelihood of
misidentification. The court must evaluate the totality of
the circumstances surrounding the voice identification
through the weighing of the general identification factors
set forth in Neil v. Biggers, supra.III. RIGHT TO COUNSEL
It is well established that the right to counsel at a pre-
trial confrontation does not arise until the initiation of
adversary judicial criminal proceedings against the
accused, whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.
Moore v. Illinois, 434 U.S. 220 (1977); Kirby v. Illinois,
406 U.S. 680 (1972); see also State v. Burden, 155 N.J.
Super. 462 (App. Div. 1977). A mere arrest does not
initiate adversary judicial criminal proceedings against an
accused and, hence, does not trigger the Sixth
Amendment right to counsel at a pre-trial confrontation.
Kirby v. Illinois, supra; State v. Earle, 60 N.J. 550 (1972);
State v. Siebold, 138 N.J. Super. 87, 91 (App. Div. 1975).Absence of counsel at a lineup conducted after the
initiation of adversary judicial criminal proceedings
renders the out-of-court identification inadmissible.
Moore v. Illinois, supra; Gilbert v. California, 380 U.S.
263 (1967). Similarly, the absence of counsel at such a
lineup renders any in-court identification inadmissible
unless the in-court identification is based upon
observations of the suspect other than at the lineup
identification. United States v. Wade, 338 U.S. 218
(1967).A criminal defendant has no right to have counsel
present during a post-indictment photograph identifica-
tion procedure. United States v. Ash, 413 U.S. 300
(1973); State v. Carter, 185 N.J. Super. 576. 579 (Law
Div. 1982). In Ash, the court held that the risks inherent
in the use of photographic displays are not so pernicious
that an extraordinary system of safeguards, namely, the
presence of counsel, is required. Id. at 321.IV. JURY INSTRUCTION CONCERNING
IDENTIFICATION
Where identification is a crucial issue in the case,
that is, where the victim is the only eyewitness, the
defendant claims that the victim has incorrectly
identified him as the assailant and there are discrepancies
in the victim’s description of the assailant, the court
should charge the jury that: 1) it is the State’s burden to