Lead Opinion
**589In this case, the State presented strong evidence that defendant Dorian Pressley distributed cocaine. According to the testimony at trial, defendant sold two vials of cocaine directly to an undercover detective on April 30, 2013. At the end of the face-to-face exchange, defendant gave the detective his phone number for future use and told her to store the number in her phone under "D-O-R" -- the first three letters of his name. A second officer observed the transaction through binoculars from about twenty feet away.
Immediately after the sale, the undercover officer transmitted a description of defendant to a supervisor. She relayed that he wore a red baseball hat, a red Adidas warm-up jacket, and khaki pants. The second officer also radioed information about defendant's movements.
About four blocks from where the sale took place, a third officer stopped defendant, who matched the description. The officer realized he knew the suspect-as Dorian Pressley-and let him go to protect *1019the ongoing undercover operation. Back at headquarters, the third officer printed a photo of defendant.
The undercover detective also returned to headquarters. Within one hour of the transaction, she viewed the single photo of Dorian Pressley and said she was certain that the individual in the picture had sold her the two vials.
Defendant was arrested months later and proceeded to trial. During the trial, the judge conducted a Rule 104 hearing and **590found that defendant's statements to the undercover agent during the transaction were admissible.
The jury convicted defendant of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) ; third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3) ; and third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7. The first charge related to defendant's possession of heroin at the time of his arrest. Defendant was sentenced to an aggregate term of ten years' imprisonment.
On appeal, defendant argued that the trial court should have held a pretrial hearing to evaluate the reliability of the identification, and that the prosecutor committed misconduct in her summation. The Appellate Division affirmed defendant's conviction. We granted certification.
I.
Defendant argues that the trial court should have granted his request for a pretrial hearing, pursuant to United States v. Wade,
The State and the Attorney General stress that police officers are "trained observers and trained witnesses" whose job requires them to remember details and faces when they conduct an investigation. They contend that when an officer "merely confirm[s] the identity of a suspect she was just investigating," a photo array is unnecessary and no Wade hearing is required.
Counsel for both sides raise an intriguing question: whether an identification made by a law enforcement officer should be tested **591by the same standards that apply to a civilian. See Henderson,
We are not aware of case law that has reviewed the social science evidence with care. Defendant points to Manson v. Brathwaite,
Implicit in the ruling is a simple concept: identifications by law enforcement officers should be examined to determine if an "impermissibly suggestive" identification procedure was used and to assess whether a defendant has proven "a very substantial likelihood of irreparable misidentification." Henderson,
In 1997, the Appellate Division in State v. Little touched lightly on the issue when it observed that "[t]here can be no dispute that **592a trained undercover police officer has heightened awareness of the need for proper identification of persons who engage in drug purveyance."
Based on the record before us, we cannot determine whether part or all of the protections outlined in Henderson should apply to identifications made by law enforcement officers. We encourage parties in the future to make a record before the trial court, which can be tested at a hearing by both sides and then assessed on appeal. See State v. Adams,
Even if the trial judge in this case had held a pretrial hearing, though, it is difficult to imagine that the identification would have been suppressed. Although showups are inherently suggestive, "the risk of misidentification is not heightened if a showup is conducted" within two hours of an event. Henderson,
We do not find that the Rule 104 hearing held in this case substituted for a pretrial hearing on the identification evidence. The hearing focused on whether defendant's statements to the undercover officer during the course of the drug sale could be admitted. Although there are some references to the identification process, the hearing did not probe or assess the relevant system and estimator variables.
Nor do we believe that this case involved a "confirmatory" identification, which is not considered suggestive. A confirmatory identification occurs when a witness identifies someone he or she **593knows from before but cannot identify by name. See, e.g., National Research Council, Identifying the Culprit: Assessing Eyewitness Identification 28 (2014) ("Confirmatory Photograph: Police will, on occasion, display a single photograph to a witness in an effort to confirm the identity of a perpetrator. Police typically limit this method to situations in which the perpetrator is previously known to or acquainted with the witness."); Sides v. Senkowski,
II.
We briefly address defendant's argument that the prosecutor engaged in misconduct in her summation and deprived him of a fair trial. Defendant first raised the argument on appeal. Because he failed to object at trial, we review the challenged comments for plain error. See R. 2:10-2. Under that standard, an appellate court can reverse only if it finds that the error was "clearly capable of producing an unjust result." Ibid.; State v. Cole,
Prosecutors can sum up cases with force and vigor, and are afforded considerable leeway so long as their comments are "reasonably related to the scope of the evidence presented." State v. Timmendequas,
A defendant's allegation of prosecutorial misconduct requires the court to assess whether the defendant was deprived of the right to a fair trial. State v. Jackson,
During summation, defense counsel attacked the State's witnesses and argued that "in this case we have some [officers who] are not honest and upstanding." Counsel also commented on the Attorney General's Guidelines for identification procedures and argued that "[t]here's no exception in [them] for police officer witnesses."
In response, the prosecutor argued (a) that the "Guidelines for the most part do address the possible misidentification when there is a lay witness" -- which was not untrue; (b) that the witness was "a law enforcement officer who's trained to do what occurred here today" -- which was also not untrue; and (c) that the officer made a "confirmatory identification." The last comment misstated the law, but it does not appear that the jury received any instruction on the meaning of the term. We do not find that the remark was capable of producing an unjust result -- particularly in light of the overwhelming evidence of defendant's guilt.
III.
We therefore affirm the judgment of the Appellate Division and uphold defendant's convictions.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.
JUSTICE ALBIN filed a separate, concurring opinion.
Concurrence Opinion
**595I concur with the Court's per curiam judgment affirming defendant's conviction in light of the overwhelming evidence of his guilt. The failure to conduct a pretrial *1022identification hearing and the prosecutor's erroneous statement in summation would not have changed the outcome of this case.
Unlike my colleagues, however, I would not elide the issue of whether a suggestive identification procedure should trigger a pretrial Wade hearing when a law enforcement officer is the eyewitness. United States v. Wade,
I am therefore prepared today to hold that, even in the case of police witnesses, whenever practicable, an identification procedure should be conducted by the showing of a photographic array rather than a single photograph. Highly suggestive identification procedures, such as the showing of a single photograph (a photographic "showup") ordinarily should result in a Wade hearing.
I.
A.
This Court has acknowledged that presenting an eyewitness with a single photograph is an "inherently suggestive" identification procedure. See State v. Henderson,
After Manson, courts appear to routinely conduct pretrial hearings when police witnesses are exposed to highly suggestive procedures, such as the single photographic showup. See, e.g., United States v. Jones,
We do not need additional social science evidence to reach the obvious conclusion that the showing of a single photograph is as inherently suggestive to a police witness as it is to a lay eyewitness. Although police officers will be better prepared to remember an individual's features in certain circumstances, such as during undercover operations, there is no evidence that police officers as a class have enhanced or superhuman identification abilities. Their memory -- like all human memory -- will be subject to "vagaries" and "malleability." See Henderson,
B.
To obtain a pretrial Wade hearing, a defendant need only show "some evidence of suggestiveness" in the identification procedure **597that could lead to a mistaken identification.
In Henderson, we set forth a best practices model for a fair identification procedure. An officer conducting a photographic lineup should not know who the suspect is or where the suspect's photograph is located in the lineup.
We have taken exquisite measures to ensure that law enforcement officers follow procedures that will enhance the fairness of eyewitness identifications. Surely, if those procedures will minimize the potential for misidentification by lay witnesses, they will have the same beneficent effect when applied to police witnesses.
To warrant a pretrial hearing, a defendant need only show that one of the procedural variables under law enforcement's control presented "some evidence of suggestiveness."
**598II.
The unnecessary use of inherently suggestive identification procedures, even in the case of a trained undercover detective, as here, cannot be squared with the logic of Henderson. The system variables discussed in Henderson address the frailty of human memory, not just a layperson's memory, and Henderson lays out a framework for using non-suggestive identification procedures that will reduce the likelihood of misidentification. That framework should apply across the board because a miscarriage of justice occurs whether a misidentification comes from a lay witness or a police witness.
Certainly, there will be times when it is not practicable to prepare a photographic array for a police witness; on those occasions the circumstances may necessitate showing only a single photo. See
In sum, the identification procedure used was sufficiently suggestive to warrant a pretrial hearing. The State should have *1024been required to demonstrate the reliability of the identification despite the use of a single photograph.
Additionally, going forward, when an officer makes an identification from an inherently suggestive photographic showup, the State should explain why it was not feasible to use a photographic array. If its response is unsatisfactory, then the court should consider giving a charge that would allow the jury to draw an adverse inference from the State's use of an unnecessarily suggestive identification procedure. This will provide an inducement for the police to use non-suggestive identification techniques. The consistent use of reliable identification procedures, such as photographic **599arrays, whenever practicable, is the best way to minimize the potential for misidentifications.
III.
For the reasons expressed, I believe the Court has passed up an important opportunity to apply the principles of Henderson to police witness identifications and thus ensure greater fairness in the criminal justice process.