8.8 - 1. Burden Of Proof And Independent Source

• Jurisdiction: New York

1. Burden of Proof and Independent Source

The prosecutor always has the initial burden of going forward to rebut the allegations raised in the defendant’s motion by demonstrating the reasonableness, fairness and lack of suggestiveness of the identification procedure utilized.¹⁴⁹² Where the defendant alleges a violation of his right to counsel at the identification procedure,¹⁴⁹³ the prosecutor also has the ultimate burden of establishing that no such violation occurred. However, where the defense’s suppression motion is based on a claim that the identification procedure was conducted in a suggestive manner, then once the prosecution has presented testimony and/or other evidence (e.g., photo array, lineup photograph) to show that the procedure was properly conducted and not unduly suggestive, the burden falls upon the defense to establish, by a fair preponderance of the evidence, that a due-process violation actually occurred.¹⁴⁹⁴

Showups by their very nature are suggestive.¹⁴⁹⁵ Therefore, use of a showup must be justified as reasonable under the circumstances; the prosecution also bears the burden of coming forward with such evidence. Proof that the showup took place in close geographic and temporal proximity to the crime,¹⁴⁹⁶ or was necessitated by injury or illness to the witness or to the defendant,¹⁴⁹⁷ generally will suffice. However, such evidence is in addition to, and does not obviate the need for, proof that the procedure itself was not unduly suggestive. Thus, where the prosecution presented testimony at the hearing concerning only the circumstances giving rise to the showup, but no evidence at all about the actual procedure, the showup identification should have been suppressed.¹⁴⁹⁸ The Court of Appeals has held that showups at police precincts are inherently suspect. Such identifications will be suppressed unless the prosecutor meets the “heavy burden” of both justifying the procedure and demonstrating the care taken to overcome “the inevitable suggestibility of the combined setting and showup.”¹⁴⁹⁹

If the defense meets its burden and the pretrial identification procedure is held by the court to have violated the defendant’s right to due process¹⁵⁰⁰ (or if a violation of the defendant’s right to counsel is found or if the identification procedure is held to be a fruit of the poisonous tree), then the court must rule that the identification that occurred at the tainted corporeal procedure cannot be introduced by the prosecutor at trial.

However, even where the results of a pretrial identification procedure have been suppressed, the court can still permit the witness to make an in-court identification of the defendant at trial if it finds a source for the in-court identification independent of the tainted identification procedure.¹⁵⁰¹ The most common independent source for such an in-court identification is the witness’s recollection of observing the defendant at or about the time of the crime itself.¹⁵⁰² Where a prosecutor must rely on an independent source justification to obtain a ruling allowing an in-court identification at trial, the burden...