Barry Kamins
Barry Kamins (NYLJ/Rick Kopstein)

The law has begun to catch up with the science of memory and perception. In June, the Division of Criminal Justice Services (DCJS) promulgated a significant number of new protocols for photographic and corporeal (live lineup) identification procedures. These procedures were disseminated to all police departments around the state and their presence or absence will now be the subject of the pre-trial Wade hearing, during which defense counsel can raise a constitutional challenge to suggestive pre-trial confrontations.

The protocols were the result of recent legislation, (L.2017, Ch. 59, eff. July 1, 2017), discussed in the prior column, permitting evidence at trial that a witness identified a suspect from a photograph. Such evidence will only be admissible if a “blind” or “blinded” identification procedure was utilized. The legislation overruled a 90-year-old evidentiary rule in New York that had precluded such evidence as part of a prosecutor’s evidence-in-chief.

Although prosecutors will now have an additional opportunity to offer evidence at trial linking a defendant to the crime, they will also have an additional obligation—at the Wade hearing—to establish that the “blind” array was lawfully conducted and not suggestive. At a Wade hearing, while a defendant has the ultimate burden to prove that a pre-trial identification was unduly suggestive, the People have the burden of going forward with proof that the identification procedure was non-suggestive. People v. Chipp, 75 N.Y.2d 327 (1990).

The legislation also required DCJS to promulgate a number of best practices for photo and corporeal identification procedures. These protocols were subsequently established by DCJS and intended to meet the needs of all police departments in New York regardless of size or resource limitations.

These best practices incorporate many years of scientific research on memory and interview techniques. They focus on seven critical aspects of administering photo arrays: selection of fillers; inviting a witness to view an array; instructions to the witness prior to viewing an array; administering the procedure; post-viewing questions of the witness; documentation of the procedure; and speaking with the witness after the procedure.

Significantly, these protocols 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.

In a “blind” procedure, the administrator does not know the identity of the suspect. Two people are required to conduct a blind array—one to assemble the array and one to administer it.

In a “blinded” procedure, while the administrator may know who the suspect is, by virtue of the procedure’s administration, the administrator does not know the suspect’s position in the array until the procedure is completed. This can be accomplished in several ways. An array can be assembled by someone, other than the administrator, and then placed in an unmarked folder for the administrator. This is known as the “two-person shuffle.” Or the administrator can create multiple arrays in which the suspect’s position is different in each; each array is in a separate sealed envelope. The witness then selects one of the envelopes to use as the array. This is known as the “one-person shuffle.” Regardless of which procedure is used, the administrator should be positioned in such a way so that he is not in the witness’s line of sight during the viewing of the array.

With respect to the selection of fillers, the new protocols suggest that a description of the perpetrator, given by the witness, be taken into account when selecting fillers to be used in the array. A witness’s description of the perpetrator can be relevant to the suggestiveness inquiry. Prosecutors and defense counsel will argue whether the composition of an array unfairly highlighted a defendant based upon the witness’s description. “The court, for its part, must evaluate the suggestiveness of the pre-trial identification procedure both in light of and in spite of the witness’s description.” New York Identification Law, Hibel, at 4-16.

The protocols discuss what the police should say to a witness when inviting him or her to view an array. For example, a police officer should not tell the witness whether or not a person is in custody or whether the police have any corroborating evidence, e.g., a confession or physical evidence. The police should merely advise the witness that they intend to conduct an identification procedure without saying anything about the suspect.

Once the witness has arrived at the police facility, the protocols discuss the nature of the instructions that should be given to the witness. Initially, the witness should be told that the perpetrator may or may not be in the array and that the witness should not assume that the administrator knows who is the perpetrator.

The witness must also be instructed about the quality of the photographs in the array. For example, the witness should be told that individuals presented in the photo array may not appear exactly as they did on the date of the incident because features such as head and facial hair are subject to change. In addition, the true complexion of a person may be lighter or darker than shown in the photograph. The witness will be told to ignore any markings that may appear on the photographs.

Finally, the witness should be told that every witness who makes an identification will be asked to describe their level of confidence about that identification in their own words and should avoid using a numerical scale of any kind.

After viewing a “blind” or “blinded” photo array, the witness will be asked whether he/she recognized anyone and, if so, what photograph was recognized. In addition, the witness will be asked “from where do you recognize the person in the photograph?” Finally, the witness will be asked to describe his or her level of confidence, e.g., “Without using a number, how sure are you?”

The protocols suggest certain best practices with regard to documenting the procedure. Unless the witness objects at the outset, the entire identification procedure should be memorialized using audio or video recording. This may not be possible if there are equipment issues or the police believe that a recording would jeopardize the safety of a witness. The memorialization should include any physical or verbal reaction to the array as well as a confidence statement by the witness.

Once the identification is concluded and documented, the administrator should not make any comment to the witness that would suggest that the witness had identified the correct suspect.

A few observations can be made about the new protocols. The “blind” procedure requires the use of two individuals while the “blinded” procedure, using the “one-person shuffle,” only requires one administrator. Thus the “blinded” array will be easier for law enforcement to administer and may become the default method for the police. In addition, the police may decide not to conduct corporeal lineups at all since photo arrays are much easier to administer. As a result, in a case without any independent forensic evidence, a conviction could rest solely upon a single photo identification.

The above protocols reflect the results of substantial scientific research in the area of memory, perception and recall as they relate to eyewitness identification. As mentioned earlier, they are not mandatory and the failure to utilize them will not mandate the suppression of a pre-trial identification. As many police agencies around the state begin to utilize them, however, they will undoubtedly become standardized procedures involving pre-trial identification.

These new procedures for law enforcement personnel in New York reflect a national trend of state-based eyewitness identification reform. “The Promises and Pitfalls of State Eyewitness Identification Reforms,” 104 Ky. L.J. 99 (2016). Many of these reforms embrace the current state of scientifically accepted identification research. For example, in State v. Henderson, 27 A.3d 872 (2011), the New Jersey Supreme Court used its supervisory powers to direct law enforcement to adopt best practices based on the scientific research of the last three decades. Supreme Court Justice Sonia Sotomayor recently noted that a vast body of scientific literature, i.e., more than 2,000 studies, has reinforced the concern expressed by the court a half-century ago that eyewitness misidentification is the single greatest cause of wrongful convictions in this country. Perry v. New Hampshire, 565 U.S. 228 (2012) (dissenting opinion); U.S. v. Wade, 388 U.S. 218, 229. In promulgating new protocols, New York has taken one more step to ensure the fairness of statewide identification procedures.