8.11 - B. Defense Strategy

• Jurisdiction: New York

b. Defense Strategy

A defendant has the right not to appear personally at the hearing.¹⁵¹⁸ The same does not hold true for the trial.¹⁵¹⁹ Where the defense has raised the issue of suggestiveness as a ground for suppression, it is often the wiser course to waive the defendant’s presence in the courtroom during the hearing testimony of the identifying witness, since this could avoid yet another suggestive confrontation.¹⁵²⁰

Defense counsel should explore, in as much detail as possible, all areas that might indicate suggestibility in the identification procedure. In cross-examining prosecution witnesses, this should include the circumstances surrounding each and every “confrontation” (photographic or corporeal) between the identifying witness and the defendant (or his photo), regardless of whether the confrontation was accidental or arranged by the police.¹⁵²¹ It should also include the contents of all pre-identification conversations between the police and the identifying witness(es). First, this is necessary for the purpose of trying to convince the court that all pretrial and in-court identifications should be suppressed. Second, even if the hearing court holds that the identification testimony is admissible, ultimately it will be for the jury to decide at trial the significance, credibility and weight to be given this testimony. Admissibility of the evidence does not...