STATE OF NEW JERSEY VS. JOHN T. KERNAN (13-12-3525, CAMDEN COUNTY AND STATEWIDE), A-4432-14T1

Background

After a post-concert brawl in Camden (July 21, 2013), John Kernan was indicted and later tried for aggravated assault and related offenses arising from attacks on several men; jury convicted him of third-degree aggravated assault, third-degree endangering an injured victim, and petty disorderly mutual fighting.
An independent (non-party) eyewitness observed part of the assault, later identified two suspects to police at the scene primarily by clothing (an American-flag bandana) rather than facial recognition, and did not make an in-court identification.
Police detained four males nearby (including Kernan and co-defendant Terry) and the witness identified two of them; the showup was documented with a sparse “Showup Identification Procedures Worksheet” and two witness statements were in discovery.
Defense moved post-testimony for a Henderson/Wade-style pretrial identification hearing and to exclude or strike the out-of-court identification under State v. Delgado (insufficient contemporaneous record), arguing suggestiveness, hearsay, and confrontation violations; trial court denied the belated hearing and admitted the testimony, giving enhanced jury instructions.
On appeal, Kernan challenged the identification’s admissibility (Delgado/Rule 3:11), complained about hearsay testimony recounting the identification, sought a pretrial Henderson hearing, and argued the verdict was against the weight of the evidence. Appellate court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under Delgado / Rule 3:11 (insufficient contemporaneous record)	State: Record and witness statements available; trial court evaluated credibility and admitted testimony with instruction	Kernan: Officers failed to make the required written/verbatim record of the showup, so the out-of-court ID should be excluded	Admission not reversible error: defense raised issue belatedly after witness testimony; adequate discovery existed and trial court properly exercised discretion under Rule 3:11 to admit with jury charge
Hearsay / Confrontation (officer related witness’s identification)	State: Officer testimony confirming identification was cumulative of eyewitness’s own testimony	Kernan: Officer’s recounting of the witness’s out-of-court identification was hearsay and violated confrontation	Any error was harmless: jury already heard the eyewitness, and the officer’s testimony merely confirmed what was before the jury
Request for Henderson (Wade) pretrial hearing on suggestiveness/system variables	State: No threshold showing of suggestiveness; ID made within an hour; police warned witness; bandana was unique identifier; evidence of reliability shown at trial	Kernan: Showup was suggestive (bandana/clothing focus, detained lineup, possible third-party involvement); surprised witness identified by clothing not face	Denied: defendant failed to make initial evidentiary showing of suggestiveness required for a pretrial hearing; even if error, harmless because witness credible, cross-examined, and trial court gave enhanced instructions
Weight of the evidence / sufficiency in light of ID concerns	State: Multiple eyewitnesses and medical evidence support convictions; independent witness ID and corroboration by others	Kernan: Identification unreliable and verdict against weight of evidence	Affirmed: appellate court found substantial corroborating testimony and circumstantial evidence supporting verdict; no reason to overturn

Key Cases Cited

State v. Delgado, 188 N.J. 48 (2006) (requires contemporaneous record of out-of-court identifications and authorizes remedies if record is deficient)
State v. Henderson, 208 N.J. 208 (2011) (establishes procedure for pretrial reliability hearings on eyewitness ID and identifies system/estimator variables)
State v. Wright, 444 N.J. Super. 347 (App. Div. 2016) (discusses burden when Delgado issues are not raised pretrial)
State v. Macon, 57 N.J. 325 (1971) (outlines standards for showing prejudice when discovery defects are raised late)
United States v. Wade, 388 U.S. 218 (1967) (authorizes pretrial confrontation-style hearings for identification procedures)