16.13 - D. Photos And Police Sketches

• Jurisdiction: New York

D. Photos and Police Sketches

The exceptions to the no-bolstering rule permitted by CPL §§ 60.25 and 60.30 apply only to corporeal identifications. References by the prosecutor at trial to a previous photo identification or an identification of a police sketch are generally prohibited.²²²⁶

Photographs are said to be not as reliable as corporeal identifications and may give the impression that the defendant has had prior problems with the law.²²²⁷ The witness need not actually state that he identified the defendant from a photo to constitute error. A simple “yes” response to the question, “Did the detective show you photographs?” may be sufficient grounds for a reversal.²²²⁸

The prohibition against introducing or referring to photographs of the defendant at trial is not absolute. If the purpose of introducing a photo is not to bolster an identification of the defendant but to establish the defendant’s appearance prior to trial, it may be admissible.²²²⁹ Thus, for example, where a witness has described a robber as having a mustache and at trial identifies the defendant as the robber but testifies that his mustache had disappeared since the incident, a mug shot photo showing the defendant wearing a mustache, taken the day he was arrested for the robbery, is admissible. When photographs are admitted for this limited purpose, however, it should be made clear to the jury that the photographs were taken subsequent to, and in connection with, the arrest for this charge, so that a prior police record inference is not raised.

The prosecutor also may introduce photographs into evidence if the use of photographic identification procedures during the investigation of the case is first raised by the defense.²²³⁰ Attacking a witness’s credibility by demonstrating that the witness picked out someone other than the defendant from an initial photo array allows the prosecution to bring in evidence that the witness later selected the defendant’s photo from a subsequent array.²²³¹

The trial judge may lift the prohibition against the prosecutor referring to photos or police sketches if the defense “opens the door” and attacks the witness’s identification as a recent fabrication and the photo identification or sketch occurred prior to the motive to falsify.²²³² What constitutes “opening the door” to the introduction of a photographic identification is not always clear. In one case, for example, defense counsel asked on cross- examination whether the witness ever said that she...