State v. Anthony, 204 A.3d 229

Background

Victim Eugene Roberts was robbed at gunpoint and observed his assailants at close range; he later identified defendant Ibnmauric Anthony from a 6-photo array administered at the police station.
The array was administered by a blind officer, who used three pre-printed Newark PD forms; no audio or video recording and no contemporaneous verbatim transcript of the administration were made.
Forms recorded Roberts’ selection (#3) and a handwritten identification phrase and noted he was “confident in his choice,” but did not capture the full dialogue or Roberts’ exact words of confidence.
Defendant moved for a pretrial Wade/Henderson hearing to challenge the identification; the trial court denied it for lack of evidence of suggestiveness tied to a system variable and admitted the identification; defendant was convicted and the Appellate Division affirmed.
The Supreme Court granted limited review to address Rule 3:11 compliance, the adequacy of the police record, the standard for pretrial hearings when recording requirements are not met, and appropriate remedies/jury instructions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper recording method for out-of-court identifications	State: Rule 3:11 complied because written forms satisfied requirements	Anthony: Rule requires electronic recording when feasible and verbatim contemporaneous words of witness	Court: Prefer electronic (video) recording when feasible; if not, contemporaneous verbatim written account; if that is not possible, detailed summary as soon as practicable. Officers must document reasons for not electronically recording.
Remedy when Rule 3:11 / Delgado not fully followed	State: Failure to record does not automatically bar reliable IDs; suppression per se would frustrate truth-seeking	Anthony: Failure to preserve witness’s exact words of confidence requires exclusion or adverse-inference/jury instruction	Court: Modified Henderson—if no electronic or contemporaneous verbatim written record exists, defendant is entitled to a pretrial hearing on admissibility without first showing suggestiveness tied to a system variable; other remedies (suppression, redaction, special jury charge) remain available.
Pretrial hearing threshold under Henderson when recording is incomplete	State: Henderson requires some evidence of suggestiveness to obtain a hearing	Anthony: Incomplete record prevents defendant from discovering suggestiveness; hearing should be automatic	Court: Where Delgado/Rule 3:11 are not followed and no electronic or contemporaneous verbatim record exists, defendant need not first show suggestiveness to secure a hearing.
Jury instruction/remedy for incomplete recordation	State: Model identification charge sufficed; no plain error	Anthony: Court should have given supplemental instruction or adverse-inference charge because Rule 3:11 was violated and ID was sole incriminating evidence	Court: Trial court need not automatically give supplemental charge; it should permit one when facts warrant. Here, remand for an evidentiary hearing; no plain-error reversal solely for omission of supplemental charge given trial judge used enhanced model identification charge and defendant did not request a special charge.

Key Cases Cited

State v. Delgado, 188 N.J. 48 (requiring written record of out-of-court identification, including dialogue and witness confidence when feasible)
State v. Henderson, 208 N.J. 208 (revising admissibility framework for eyewitness ID; pretrial hearing if evidence of suggestiveness tied to system variable; require recording witness confidence)
United States v. Wade, 388 U.S. 218 (right to pretrial confrontation/hearing to test identification procedure)
Manson v. Brathwaite, 432 U.S. 98 (traditional reliability test for eyewitness ID)
State v. Earle, 60 N.J. 550 (1972: counsel not required at pre-indictment ID; but complete recordation advised)
State v. Cromedy, 158 N.J. 112 (importance of tailored jury instruction when identification reliability is critical)