the lineup was “conducted fairly and without
unnecessary suggestiveness,” no violation of due process
has occurred. State v. Mustacchio, 57 N.J. 265, 270
(1970); see also Foster v. California, 394 U.S. 440 (1969).
The New Jersey Supreme Court has concluded that
a criminal defendant has no constitutional right to a
pretrial lineup and that the State is under no obligation
to conduct such a lineup. State in the Interest of W.C., 85
N.J. 218, 221 (1981). However, a trial court has the
inherent authority to order such a lineup on a defendant’s
behalf upon proper motion by the defendant. Id. at 221-
226.
B. Show-Ups
It is well established that a show-up (a one-to-one
confrontation) is not in and of itself an unnecessarily
suggestive identification procedure which violates due
process. Neil v. Biggers, 409 U.S. at 198; State v. Edge,
57 N.J. at 587; State v. Johnson, 138 N.J. Super. 579, 585
(App. Div. 1976), certif. denied, 71 N.J. 340 (1976).
Rather, the totality of the circumstances must be
considered to determine whether the manner of the
show-up was so unnecessarily suggestive and unfair as to
amount to a denial of due process. Neil v. Biggers, supra;
State v. Edge, supra.
A show-up conducted shortly after the commission
of the crime is far from being conducive to
misidentification. Rather, such a confrontation
“promotes fairness to the accused by allowing a viewing
while the witness’ mental image of the perpetrator is still
fresh.” State v. Carter, 91 N.J. 86, 130 (1982); State v.
Wilkerson, 60 N.J. 452, 461-461 (1972). One-on-one
“show-up” identifications, in which a suspect is
apprehended promptly after a crime and brought to the
victim, are not prohibited. Id. at 461-62
(1972)(approving “one-on-one identifications made at
the scene of the initial observation -- whether or not it be
the scene of the crime -- or within a reasonably short time
thereafter”); State v. Brent, 265 N.J. Super. 577, 584
(App. Div. 1993), rev’d on o.g., 137 N.J. 107 (1994);
State v. Thomas, 107 N.J. Super. 128 (App. Div. 1969).
C. Photographic Identifications
The United States Supreme Court has recognized
that initial identification by photograph is a widely used
and effective procedure in criminal law enforcement.
United States v. Simmons, 390 U.S. 377 (1969). The
propriety of a photographic identification procedure
must be evaluated on its own facts, and convictions based
on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on due
process grounds only if the photographic identification
procedure was so impermissible as to give rise to a very
substantial likelihood of irreparable misidentification.
Id.Impermissive suggestibility in photographic iden-
tification is to be determined by the totality of the
circumstances. State v. Farrow, 61 N.J. 434 (1972), cert.
denied, 410 U.S. 937 (1973). The exclusion of evidence
is required only where all the circumstances lead
forcefully to the conclusion that the identification was
not actually that of the eyewitness but was imposed upon
him so that a substantial likelihood of irreparable
misidentification can be said to exist. Id.Although it has been stressed that the viewing of a
variety of photographs is the more desirable police
procedure, identification predicated upon the viewing of
a single photograph have been admitted. See, e.g.,
Manson v. Brathwaite, 432 U.S. 98 (1977); State v.
Matlock, 49 N.J. 491 (1967), cert. denied 389 U.S. 1009
(1967). Ordinarily, the showing of a single photograph
goes to the weight, and not the admissibility, of an
identification. State v. Farrow, 61 N.J. 434 (1972), cert.
denied, 410 U.S. 937 (1973).An element of suggestibility does not necessarily
preclude the admission of photographic identification
testimony. See, e.g., State v. Farrow, supra (fact that
defendant’s photo was approximately one inch larger in
length and breadth than four other photographs in array
did not warrant exclusion of evidence of identification,
particularly where defendant’s photo was otherwise
similar to other in style and subject depicted); State v.
Thompson, 59 N.J. 396 (1971) (inclusion of two photos
of defendant in seven photo array not grounds for
exclusion, particular where photos of defendant were
taken two years apart and depicted significant changes in
his appearances). See also State v. Ford, 79 N.J. 136
(1979), rev’g on dissent, 165 N.J. Super. 249, 254 (App.
Div. 1978); State v. Peterkin, 226 N.J. Super. 25 (App.
Div.), certif. denied 114 N.J. 295 (1988)(improper police
procedures employed in constructing photographic
lineup resulted in suppression of out-of-court
identifications).Repeated single photograph presentation identifica-
tion procedure was not so suggestive as to render witness’s
identification of defendant inadmissible, where witness
had given detailed description of defendant shortly after