8.10 - A. Prosecutor's Case

• Jurisdiction: New York

a. Prosecutor’s Case

The prosecutor must initially present evidence to rebut the defendant’s allegations. The prosecutor will attempt to show that the procedure was not suggestive by having an individual testify who was present at the procedure (usually the police officer who conducted it). The witness should explain the procedure utilized and the precautions taken to avoid suggestiveness. Where multiple witnesses were present at the same procedure, the officer should say what was done to keep them from communicating with each other and to avoid having the defendant appear different from others in the procedure.

The witness should then introduce a record of the identification procedure (e.g., the actual photo array or a photograph of the lineup). If the prosecutor fails to preserve and produce a photographic array shown to a witness, such failure gives rise to an inference that the array was suggestive.¹⁵⁰⁸ This inference must be rebutted by the prosecutor presenting evidence to the contrary.¹⁵⁰⁹ However, even if this inference is not successfully rebutted by the prosecutor, a witness who viewed the missing array and a subsequent lineup may testify at trial about the lineup if the court determines that the lineup procedure was nonsuggestive and sufficiently distant in time from the photo array as to attenuate the taint.¹⁵¹⁰

There is no requirement that the witness who made the identification must be the one to testify at the hearing. The prosecutor’s legal burden of establishing the propriety of the identification procedure can be met through the testimony of an officer who conducted or was present at the identification procedure.¹⁵¹¹ This is true regardless of whether the pretrial identification involved a photo array¹⁵¹² or a lineup.¹⁵¹³

As a practical matter, identifying witnesses frequently do testify at hearings because judges sometimes want to hear them. Thus, even if the prosecutor does not call the witness, the court may do so on its own or allow defense counsel to do so.¹⁵¹⁴ If the defense is permitted to call the identifying witness, counsel should be limited by the court to direct questions (no cross-examination, leading or impeachment) concerning only the identification procedure, and not the underlying facts or details of the crime.

Sometimes a prosecutor will call the identifying witness at the hearing, even where the identification procedure was clearly proper, to give the witness a “testimonial warm-up” or to prevent the possibility that the hearing court or an appellate court might...