The defendant was tried and convicted for offenses related to a non-fatal slashing. Although no physical evidence linked him to the crime, surveillance footage captured the incident, and the victim selected the defendant’s picture from a photo array. A woman, who witnessed the attack, identified the defendant as the attacker to police but was unwilling to give a formal statement or testify. At the trial, the prosecutor referenced the anonymous woman, after which an officer testified that, based on the “evidence . . . collected,” he included the defendant’s picture in the photo array.
On appeal, the Appellate Division found that this testimony violated the hearsay rule and the Confrontation Clause by suggesting that the anonymous woman — a non-testifying witness — implicated the defendant in the crime. The NJ Supreme Court reversed, finding the officer’s testimony did not generate such an inference. The Court determined, because the officer did not imply that the anonymous woman gave any information to police, the testimony did not create the “inescapable inference” that he had superior information about the defendant’s guilt from the anonymous woman, and it did not violate the defendant’s confrontation right or the hearsay rule.
Nonetheless, the Court cautioned against the use of the phrase “based on the evidence collected” in this context. Such language can potentially sweep in inadmissible hearsay. The Court noted, when the State improperly lays the foundation for an officer’s testimony about a photo identification, the trial court should promptly give a curative instruction to direct the jury’s attention away from evidence outside of the record. Finally, information gathered during police investigations that leads to the development of a suspect is not subject to the hearsay rule.