8.12 - 3. Determination Of The Court

• Jurisdiction: New York

3. Determination of the Court

The hearing court will make its finding of whether there was undue suggestiveness at the identification procedure based on the totality of the circumstances.¹⁵²⁴ As a practical matter, absent testimony that the police “coached” an identifying witness before or during the viewing, the court generally will base its ruling on whether the procedure was inherently suggestive by examining the photographs introduced by the prosecutor. If the court is satisfied that the defendant in the lineup (or the defendant’s photo in an array) does not stand out from the “fillers” in a way that would draw attention, it is unlikely that the court will suppress the identification evidence.¹⁵²⁵ Moreover, because the issue of suggestiveness is a mixed question of law and fact, although an intermediate appellate court has jurisdiction to review everything, review by the Court of Appeals is limited to deciding whether there is evidence in the record...