231 A.3d 689
N.J.2020Background
- Victim Anthony Rivera was slashed exiting a bar; he gave a description and said he could identify his attacker if he saw him again; surveillance video captured the incident but did not show the assailant’s face.
- Officers at the scene spoke with an anonymous woman who showed them an Instagram photo and identified defendant Jose Medina, but she refused to give a formal statement or testify.
- Detective Anthony Abate viewed the surveillance footage, ran background checks, and prepared a photo array that included Medina; Rivera identified Medina in the array and again at trial.
- At trial Abate testified that he included Medina’s photo because Medina was a suspect “based on the evidence . . . collected,” and said officers had spoken with a woman who wouldn’t get involved; defense objected.
- The jury convicted Medina; the Appellate Division reversed, finding Bankston/Branch principles violated; the New Jersey Supreme Court granted certification and reversed the Appellate Division, finding no abuse of discretion but cautioning against certain phrasing.
Issues
| Issue | State's Argument | Medina's Argument | Held |
|---|---|---|---|
| Whether Abate’s testimony that he included Medina in the array “based on the evidence collected” violated the hearsay rule and Confrontation Clause by implying a non‑testifying witness implicated defendant | The testimony was brief, contextual, and did not compel an inference that a non‑testifying witness provided incriminating information; other record evidence explained the suspect selection | The phrase implied extra‑record, untestable incriminating information from the anonymous woman and thus violated Bankston/Confrontation rights | Court: No; viewing the whole record, testimony did not create an “inescapable inference” that the anonymous woman implicated Medina, so no hearsay or confrontation violation under Bankston/Irving |
| Whether Branch’s prohibition on phrasing (e.g., “based on information received”) for photo arrays extends to broader phrases like “evidence collected” | Phrase is broader and, in context, referred to admissible, non‑hearsay sources (surveillance, victim descriptions) so Branch does not bar it here | Broader phrasing is equally suspect and, given lack of other admissible links, permitted an impermissible inference | Court: Context matters; Branch’s rule does not categorically bar “evidence collected,” but such phrasing is risky and should be avoided when it could suggest extra‑record inculpatory information |
| Standard of review: abuse of discretion or plain error | State: trial court’s evidentiary ruling should be reviewed for abuse of discretion | Medina: objected pretrial and at trial; argues reversal warranted regardless of standard | Court: used abuse of discretion standard for evidentiary rulings and found no clear error |
| Whether police may use hearsay in investigations to assemble photo arrays | State/AG: Investigative reliance on hearsay is distinct from admissible trial evidence; hearsay used to develop leads is permissible so long as the out‑of‑court statements are not presented at trial | Medina/Public Defender: Any reference to out‑of‑record evidence in identification context risks implying impermissible hearsay and should be restricted | Court: Police may rely on investigatory hearsay to develop suspects; only the introduction of that hearsay at trial raises hearsay/Confrontation issues; trial courts should curtail or cure improper testimony and avoid certain phrases |
Key Cases Cited
- State v. Bankston, 63 N.J. 263 (1973) (bars officer testimony that creates an inescapable inference a non‑testifying informant implicated the defendant)
- State v. Irving, 114 N.J. 427 (1989) (applies Bankston principles to photo array testimony and disallows inferences that an informant identified defendant)
- State v. Branch, 182 N.J. 338 (2005) (disapproves officer testimony that he placed a photo in an array “upon information received” and limits such explanations in photo‑identification contexts)
- State v. Lazo, 209 N.J. 9 (2012) (holding that an officer’s explanation for including a photo was improper and constituted impermissible lay opinion that bolstered the identification)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause forbids admission of testimonial hearsay unless declarant unavailable and defendant had prior opportunity for cross‑examination)
- State v. Henderson, 208 N.J. 208 (2011) (framework for assessing reliability of identifications)