sentence the defendant to a term of imprisonment which
shall include a parole disqualifier of one-third to one-half
the sentence, or three years, whichever is greater. N.J.S.A.
2C:11-5b(3).
IDENTIFICATIONIDENTIFICATIONIDENTIFICATIONIDENTIFICATIONIDENTIFICATION
I. DUE PROCESS
A defendant’s due process rights are violated only
when the pretrial confrontation procedure is unnecessar-
ily suggestive and creates a substantial likelihood of
misidentification. Manson v. Brathwaite, 432 U.S. 452
(1977); Neil v. Biggers, 409 U.S. 188 (1972); State v.
Wilkerson, 60 N.J. 452 (1972).In Neil v. Biggers, the Court observed that the
primary evil to be avoided is “a very substantial likelihood
of irreparable misidentification.” 409 U.S. at 198,
quoting from Simmons v. United States, 390 U.S. 377,
384 (1968). Thus, suggestiveness alone does not require
exclusion of identification testimony. Biggers, 409 U.S.
at 199; State v. Johnson, 138 N.J. Super. 579 (App. Div.
1976), certif. denied, 71 N.J. 340 (1976). Rather,
“reliability” is the central question or “linchpin” in
determining the admissibility of such evidence. Manson
v. Brathwaite, 432 U.S. at 114; State v. Carter, 91 N.J. 86,
129 (1982). The question of reliability must be
evaluated in the “totality of the circumstances” which:include the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time
between the crime and confrontation. [Neil v. Biggers,
409 U.S. at 199; State v. Carter, 91 N.J. at 239-230].“Against these factors must be weighed the corrupting
effect of the suggestive identification itself.” Manson v.
Brathwaite, 432 U.S. at 199; State v. Little, 298 N.J.
Super. 573 (App. Div. 1997).Law enforcement authorities should make a
complete record of an identification procedure if it is
feasible to the end that the event may be reconstructed in
the testimony. The identity of persons participating in
a 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. A failure to follow
such procedures will not 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. State v.
Earle, 60 N.J. 550, 552 (1972).