8.7 - C. Hearing On Motion To Suppress Identification Testimony

• Jurisdiction: New York

C. Hearing on Motion to Suppress Identification
Testimony¹⁴⁷⁸

A hearing is not required in all cases where the trial will include identification testimony.¹⁴⁷⁹ Thus, an important initial determination is whether such a hearing is required in the particular case. For instance, no hearing is necessary where the identification is not the result of a police-arranged identification procedure, such as where the showup results from the complainant’s own investigative activity.¹⁴⁸⁰ Likewise, a hearing is not required for confirmatory identifications. Thus, where an undercover police officer viewed the defendant at a station house showup for a confirmatory identification three hours after a drug sale, no hearing was required.¹⁴⁸¹ However, use of the label “confirmatory” does not guarantee that the court will (or should) dispense with a hearing.¹⁴⁸² The facts of each case are determinative. Thus, a hearing has been required when the officer’s “confirmatory” identification was made four weeks after the transaction, regardless of whether it took place in the precinct¹⁴⁸³ or on the street.¹⁴⁸⁴ Similarly, where the complaining witness identified the defendant from a police squad car during a canvass of the neighborhood, a hearing was required.¹⁴⁸⁵

Most identification procedures (lineup,¹⁴⁸⁶ showup¹⁴⁸⁷ and photo array¹⁴⁸⁸) do give rise to a hearing. The purpose of this hearing is to determine whether the procedures utilized by police in obtaining pretrial identification of the defendant (1) violated the defendant’s right to counsel, (2) were so suggestive that they violated the defendant’s right to due process, and (3) whether they were so suggestive as to irreparably taint the reliability of any in-court identification at trial. It should be noted that the accuracy of the pretrial identification is not in issue at the hearing—only the propriety of the identification procedures themselves.¹⁴⁸⁹

The...