B. The Hearing

• Jurisdiction: New York

B. The Hearing

The hearing is a bifurcated procedure. The People have the burden of going forward to show the nonsuggestiveness of the identification procedure.³¹⁹ The defense then has the burden of showing by a preponderance of the evidence that the procedure was unduly suggestive. Evidence of an unnecessarily suggestive identification violates due process and must be excluded.³²⁰

Where the accused fails to show that the identification procedure was unduly suggestive, the hearing is concluded and evidence of the identification procedure will be admitted at trial.

If the accused meets this burden, evidence of the pretrial identification (show-up or lineup) will not be admitted, and the court must then determine whether the suggestiveness of the identification procedure will taint the in-court identification of the accused.³²¹ At this second part of the hearing, the People have the burden of showing an independent source for the identification by clear and convincing evidence.³²²

The court will examine all the factors surrounding the identification procedure to determine whether the in-court identification is a product of this tainted identification or is based upon an independent source. The independent source is usually derived from the witness's viewing of the perpetrator during the commission of the offense;³²³ it may also be based upon a prior relationship with the accused.³²⁴ It has been held that an observation of 10 to 15 seconds during the incident is sufficient for an independent source.³²⁵

The accused may waive his or her appearance at an identification hearing.³²⁶

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Notes:

^[319] People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902 (1981); People v. Sosa-Marquez, 177 A.D.3d 1003, 115 N.Y.S.3d 333 (2d Dep't 2019).

^[320] Id.

^[321] People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292 (1970); People v. Jones, 25 N.Y.2d 637, 306 N.Y.S.2d 17 (1969).

^[322] People v. Rivera, 22 N.Y.2d 453, 293 N.Y.S.2d 271 (1968), cert. denied, 395 U.S. 964 (1969); People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1 (1967).

^[323] People v. Harrington, 29 N.Y.2d 498, 323 N.Y.S.2d 971 (1971); People v. Ganci, 27 N.Y.2d 418, 318 N.Y.S.2d 484, cert. denied, 402 U.S. 924 (1971); People v. Brown, 20 N.Y.2d 238, 282 N.Y.S.2d 497 (1967), cert. denied, 390 U.S. 928 (1968).

^[324] People v. Oakley, 28 N.Y.2d 309, 321 N.Y.S.2d 596 (1971).

^[325] People v. Sorenson, 112 A.D.2d 1016, 493 N.Y.S.2d 16 (2d Dep't 1985); People v. Washington, 111 A.D.2d 418, 489 N.Y.S.2d 380 (2d...