On certification to the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Chief Justice Rabner
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Cecilia X. Chen (A-69-08)(063177)
[NOTE: This is a companion cases to State v. Larry R. Henderson, also filed today.]
Argued September 29, 2009 -- Decided August 24, 2011
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers whether suggestive behavior by a private party, without any state action, should be evaluated at a pretrial hearing to determine whether an eyewitness' identification may be admitted at trial.
Late in the evening on January 23, 2005, Johann Christian Kim (JC) received a phone call from his ex-girlfriend, defendant Cecilia X. Chen. The two had not spoken since June 2000, around the time their relationship ended. During the call, defendant told JC that she was not doing well and had recently broken up with her boyfriend. She apologized for having taken JC for granted and wondered aloud how things might have turned out had they remained together. JC stated that he was happily married and expecting a child. Defendant cried at times before the conversation ended.
Three days after that phone call, JC's wife, Helen, was home alone recovering from surgery. At 4:00 in the afternoon, she received a phone call from an unknown woman who asked for Mr. Kim. The woman explained that she was calling about a second mortgage with Bank of America, but the Kims had no such mortgage. The caller ID listed a liquor store located in Neptune City. The Kims lived nearby in Ocean Township. A short time later Helen was disturbed by loud knocking on the front door. A young woman who Helen did not know, but who Helen later identified as defendant, was at the door. The woman explained that her car had broken down and asked to use a phone and the bathroom. Helen let the woman into the house, but called JC to tell him about the strange phone call and woman. While they were speaking, the woman returned from the bathroom, grabbed Helen, and stabbed her with a kitchen knife in the back of the shoulder. Helen fought back. A neighbor who lived across the street, Lori Schoch, heard Helen's screams and saw part of the struggle on the front porch. Schoch called the police. Helen was able to disarm her attacker, and the woman ran off.
Helen described her assailant to police as an Asian or Filipino woman who was about 5'4", twenty to twenty-five years old, and wearing black frame glasses. Schoch provided a similar description to the police within about two hours of the attack. Helen drew a picture of her assailant that night. She showed it to JC who thought it looked familiar. Between the drawing and the unusual phone call, JC thought that perhaps it might be defendant. JC had access to defendant's personal website and showed Helen five to ten pictures of defendant on the computer. When she saw one picture, Helen "just jumped" and was "ninety percent positive" that defendant was her attacker. Helen testified that she looked at the photos about five more times during the first month after the attack.
The Kims brought copies of the photos to the police station. During their investigation, police learned that defendant lived in Maryland and attended medical school there. They traced her activities on the day in question and determined that defendant could have left the state in time to arrive in New Jersey and carry out the attack. Other corroborating evidence also was introduced at trial: a search of defendant's car uncovered a piece of paper with the words "Ocean Township" and the Kims' phone number written on it; and a co-worker testified that defendant wore black eyeglasses similar to those found at the Kims' house.
On April 17, 2006, defendant was indicted on charges of aggravated assault, armed robbery, and weapons offenses. Nearly twenty-two months after the attack, on November 14, 2006, the police presented a photo array to Helen and Schoch for the first time. A detective testified that one of the reasons the police waited to show the photo array was out of concern that the website pictures might have prejudiced Helen. Helen and Schoch separately selected defendant's picture.
Defense counsel moved for a Wade hearing, arguing that Helen's identification was based on seeing photos that her husband showed her rather than her memory of the attack. The trial court denied the motion because the procedure followed by the police was not impermissibly suggestive.
Defendant testified at trial. She admitted speaking with JC on January 23, 2005, while she was under the influence of alcohol, and confirmed much of his account of the conversation. She denied any role in the attack. The jury convicted defendant on all counts except for the robbery charge. The court sentenced defendant to a ten-year term of imprisonment subject to an 85-percent period of parole ineligibility under the No Early Release Act.
Defendant appealed. The Appellate Division agreed that there was no need to conduct a Wade hearing because law enforcement took no part in the suggestive conduct before the initial identifications. Nonetheless, consistent with the courts' gatekeeping function, the Appellate Division concluded that there was sufficient evidence of suggestive conduct to require a preliminary hearing to determine the admissibility of the evidence.
The Court granted the State's petition for certification. 197 N.J. 477 (2009).
HELD: Even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence.
1. This case is not about government conduct. As a result, the Court is not concerned about deterring future conduct by law enforcement officers. Nonetheless, the Court must consider the admission of eyewitness identifications tainted by private suggestive procedures in light of the rules of evidence and the trial courts' gatekeeping function. Courts have a gatekeeping role to ensure that unreliable, misleading evidence is not admitted. (pp. 12-15)
2. The Court notes that identification evidence has historically raised serious questions about reliability. Today's decision in Henderson contains a broader examination of the extensive body of scientific evidence that has developed in the past thirty years. Among other things, that evidence reveals the suggestive effect that private actors can have on an eyewitness' recollection of events. In Henderson, the Court concluded that non-State actors like co-witnesses and other sources of information can affect the independent nature and reliability of identification evidence and inflate witness confidence. (pp. 15-26)
3. Because of the pivotal role identification evidence plays in criminal trials, and the risk of misidentification and wrongful conviction from suggestive behavior -- whether by governmental or private actors -- a private actor's suggestive words or conduct will require a preliminary hearing under Rule 104 in certain cases to assess whether identification evidence is admissible. Today in Henderson, the Court modified the traditional Manson/Madison test and held that defendants can obtain a pretrial hearing by showing some evidence of suggestiveness that could lead to a mistaken identification. The Court makes a modification to Henderson in cases in which there is no police action, requiring a higher, initial threshold of suggestiveness to trigger a hearing, namely, some evidence of highly suggestive circumstances as opposed to simply suggestive conduct. The Court holds that the following modified approach shall apply to assess the admissibility of identification evidence when there is suggestive behavior but no police action: (1) to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant has the burden of showing a very substantial likelihood of irreparable misidentification. (pp. 26-30)
4. Applying the above framework to the facts of this case, the Court finds that JC's words and actions were so highly suggestive that a pretrial hearing is warranted to assess the admissibility of Helen's identification evidence. The Court therefore remands the case to the trial court for a Rule 104 hearing. (pp. 30-32)
The judgment of the Appellate Division is AFFIRMED as MODIFIED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.
JUSTICES LONG, LaVECCHIA, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER's opinion. JUSTICE ALBIN did not participate.
Argued September 29, 2009
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this case, we consider whether suggestive behavior by a private party, without any state action, should be evaluated at a pretrial hearing to determine whether an eyewitness' identification may be admitted at trial.
Here, a husband suspected that his wife had been attacked by his ex-girlfriend. He showed his wife pictures of the woman to help her make an identification, and she then reviewed the photos many times. Afterward, the victim selected a photograph of the ex-girlfriend from a photo array and identified her at trial. Shortly before trial, defendant requested a Wade*fn1 hearing to challenge the admissibility of the identification testimony. The trial judge declined to hold a hearing because no government officer had acted in a suggestive manner.
Recent social science research reveals that suggestive conduct by private actors, as well as government officials, can undermine the reliability of eyewitness identifications and inflate witness confidence. We consider that evidence in light of the court's traditional gatekeeping role to ensure that unreliable, misleading evidence is not presented to jurors. We therefore hold that, even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence. Accordingly, we remand for an appropriate hearing consistent with the principles outlined below.
On Sunday, January 23, 2005, at 10:16 p.m., Johann Christian Kim (JC) received a phone call from his ex-girlfriend, defendant Cecilia X. Chen. The two had not spoken since June 2000, around the time their relationship ended. JC motioned for his wife, Helen Kim, to come to the phone and listen in on the conversation. During the call, JC relayed that he was happily married and expecting a child. Defendant, by contrast, told him that she was not doing well and had recently broken up with her boyfriend who had mistreated her. She also apologized for having taken JC for granted and wondered aloud "how things might have turned out" had they remained together. According to JC, defendant cried at times before the conversation ended.
Three days later, on January 26, 2005, Helen was home alone recovering from surgery. She was about five months pregnant at the time. While resting, she answered the phone at about 4 p.m., and an unknown woman asked for Mr. Kim. The woman explained that she was calling about a second mortgage with Bank of America, but the Kims had no such mortgage. Helen checked the caller ID after the brief conversation, and it listed "Foley's Liquor Store" -- located in Neptune City. The Kims lived nearby in Ocean Township.
Helen went back to sleep but woke up soon after to the sound of loud knocking on the front door. When she responded, she saw a young woman she did not know -- whom Helen later identified as the defendant. The woman explained that her car had broken down and asked to use a phone. Helen offered the woman a cell phone but rather than take it, the woman said she needed to use the bathroom. Helen let the woman enter the house and noticed a computer cord sticking out of her left sleeve as the woman walked toward the bathroom.
Helen then called JC to tell him about the strange phone call and the woman. While they were speaking, the woman returned from the bathroom, grabbed Helen, and stabbed her with a kitchen knife in the back of the shoulder. JC heard screams and called 9-1-1.
Helen fought back as the woman continued to try to stab her, at one point cutting Helen's eyelid. The woman also appeared to try to use the computer cord as a weapon. Helen resisted and grabbed the woman's wrist. As the struggle continued, the woman said, "I just want your money," but at no point did she attempt to take anything.
Helen steered the fight toward the front porch and screamed for help. A neighbor who lived across the street, Lori Schoch, heard the screams and saw part of the struggle on the porch. Schoch then called the police.
Eventually, Helen disarmed her attacker. As Helen was about to strike her, the woman said, "Don't do anything to hurt your baby." Helen froze in response, and the woman ran off.
When the police responded, Helen described her assailant to Sergeant Thomas Burke as an Asian or Filipino woman, about 5'4", wearing a black jacket, gray hood, dark pants, brown boots, and black gloves. Helen also spoke with Detective Michael Clancy and added that her attacker was about twenty to twenty-five years old, weighed between 110 and 120 pounds, and wore black frame glasses and a gray scarf. (Helen offered a more detailed description late that night at the police station as part of a formal, signed statement.) The ...