Barry Kamins
Barry Kamins (NYLJ/Rick Kopstein)

Fifty years ago, on June 12, 1967, the U.S. Supreme Court decided the Wade-Gilbert-Stovall trilogy and expressed its concerns about the possibility and dangers of suggestive identification procedures. U.S. v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); Stovall v. Denno, 388 U.S. 293 (1967). Long before the term “wrongful conviction” became commonplace, the court noted the conclusion by one commentator that “the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors that all other factors combined.” U.S. v. Wade, 388 at 229 (quoting Patrick Wall, “Eye-Witness Identification in Criminal Cases”).

Fifty years following Wade, New York is about to embark on a new era of eyewitness identification. Effective July 1st, newly enacted legislation will permit evidence that a witness identified the defendant from a photograph provided, however, that a “blind” or “blinded” identification procedure was utilized. In addition, the New York Court of Appeals will decide shortly whether trial courts must include a cross-racial identification charge unless the parties agree that no cross-racial identification has occurred. People v. Boone, 129 A.D.3d 1099 (2d Dept. 2015), leave granted.

Following on the heels of the Wade trilogy, the legislature enacted Criminal Procedure Law §710.20(6) to meet the concerns expressed by the Supreme Court. Under that statute, a defendant can raise a constitutional challenge to suggestive pre-trial confrontations. The essential goal of the statute “is to enable pre-trial judicial scrutiny of state sponsored identification procedures” and “to assess whether the results, by virtue of undue suggestions, are too unreliable to be admitted at trial.” Hibel, “New York Identification Law,” at §1-6.

Independent of any constitutional concerns, New York has maintained an evidentiary rule—and was the only state to do so—that does not permit evidence that, prior to trial, a witness identified the defendant from a photograph. This evidentiary rule has existed statutorily for 90 years.

In People v. Caserta, 19 N.Y.2d 18 (1966), the Court of Appeals explained the twin rationales for the exclusion of such evidence. First, the court was concerned that jurors may draw the likely inference that the defendant had been previously arrested from the fact that the police were in possession of the defendant’s photograph. Indeed, the court referred to the source of these photographs as the “rogues gallery.”

The second rationale for the rule was a concern that photographs were a more suggestive, if not less reliable, means of identification. As the court noted, photographs are sometimes of poor or uneven quality and easily distorted. Such photographs could depict a dated or distorted image of a suspect and render any identification unreliable.

The prohibition against prior photo identification evidence was not absolute. For example, defense counsel could open the door to such evidence should counsel mislead a jury by creating an inaccurate impression that a witness was unable to identify, or had not identified, the defendant prior to trial. In addition, should a defendant refuse to participate in a corporeal lineup, evidence of a pre-trial photographic lineup would be admissible. People v. Perkins, 15 N.Y.3d 200 (2010). If a witness’s testimony was challenged as a recent fabrication, evidence of a prior photographic identification would be admissible as a recent fabrication on the condition that the identification predated the motive to testify. Finally, a defendant could choose to waive the protection of the Caserta rule by eliciting testimony about a prior photographic identification with the intention of establishing that a witness had been mistaken.

Over the last decade, the Caserta rule has been re-examined and debated by numerous groups addressing the causes of wrongful convictions. The Innocence Project noted that the scientific and psychological literature shows that witnesses tend to be committed to their initial identification even if that identification is mistaken. A photo array is often the first identification procedure and, therefore, it was seen as critical that the reliability of that procedure be improved.

In the last legislative session, prosecutors sought to overturn the Caserta rule in exchange for the imposition of procedures that would make identifications at photo arrays more reliable. Various defense groups advocated for changes in the procedure—some arguing for several mandatory reforms while others were willing to accept the “blinded” procedure as the only quid pro quo.

The new legislation, (L. 2017, Ch. 59, effective July 1, 2017), does not make mandatory many of the reforms sought by some groups. What is an essential element of the legislation, however, is the required use of “blind” or “blinded” procedures. It has been documented that the state of mind of the administrator conducting a photo array might contribute to the suggestiveness of the procedure. Administrators who know the identity of the suspect in the array may inadvertently or intentionally influence the witness’s identification. Conversely, an administrator who does not know the identity of the suspect is unlikely to steer the witness to the suspect through verbal or nonverbal cues.

A “blind” procedure is one in which the administrator does not know the identity of the suspect. A “blinded” procedure is one in which the administrator does not know the location of the suspect’s photo in the array.

If an administrator utilizes either a “blind” or “blinded” procedure, the prosecutor will now be permitted to offer testimony that the witness identified the defendant’s photograph on a prior occasion as the perpetrator of the crime. This will constitute evidence-in-chief, thus overruling Caserta, and it will make New York the twenty-second state to utilize blinded identification procedures.

The failure to utilize a “blind” or “blinded” procedure will only affect the admissibility of testimony regarding a prior photographic identification. It cannot constitute a legal basis to suppress other identification evidence pursuant to CPL §710.20(6).

The legislation also requires the Division of Criminal Justice Services to promulgate a number of written best practices for photo and corporeal (live lineup) identification procedures that must be disseminated to police agencies around the state. In addition, the Division of Criminal Justice Services must develop a training program regarding these best practices. It is important to note, however, that these procedures are not mandatory and should law enforcement not utilize them, evidence of a prior photographic identification will still be admissible provided, of course, that a “blind” or “blinded” photo array was utilized.

A number of these best practices are critical to the fairness and accuracy of identification procedures. For example, the method of selecting fillers for a live lineup or photo array affects the reliability of any identification. The Innocence Project has noted that administrators frequently select fillers for identification procedures by attempting to match the appearance of the suspect. This is problematic: “When fillers are selected that do not resemble the witness’s description, this can cause the suspect to stand out because of the composition of the lineup.” “Eyewitness Identification Reform,” Innocence Project, at 2 (emphasis added).

Another best practice calls for the documentation of a witness’s confidence in his or her identification at the time an identification is made. It is important to record a witness’s initial level of confidence because “information provided to a witness after an identification suggesting that the witness selected the right person can dramatically, yet artificially, increase the witness’s confidence in the identification. Id. at 4. Further, research has disproved any correlation between a witness’s level of confidence at trial and the witness’s accuracy of the identification. See Hibel, supra at §6.02.

Other best practices include the documentation of identification procedures and the nature of instructions given to a witness before conducting a photographic array or live lineup.

With the enactment of this legislation, New York has entered a new era of eyewitness identification. It remains to be seen whether law enforcement agencies will aggressively utilize the best practices identified in the legislation so that identification procedures will be even more reliable and accurate. In addition, will the police forgo the use of traditional, corporeal identifications in favor of photo arrays? In the end, a picture may indeed be worth more than a thousand words.