C. Identification Procedures

JurisdictionNew York

C. Identification Procedures

PRACTICE GUIDE

Executive Law § 837(2) requires that the State's Division of Criminal Justice Services develop protocols and forms for lineup and photo array procedures used by law enforcement in New York.

1. Lineups

Absent exigent circumstances, exhibiting a suspect to a witness without placing the suspect in a lineup is a violation of due process.327 When a lineup is conducted, it must be arranged to avoid undue suggestiveness.328 If a lineup has been conducte d, counsel can argue that the participants did not have sufficiently similar characteristics such as height, weight, age, skin color and/or dress to avoid potential suggestiveness.329 Counsel should note whether the suspect was wearing clothing similar to that worn by the alleged perpetrator, and argue that this would be suggestive to the witness.330

2. Show-ups

Single suspect show-up identifications are permissible where exigent circumstances require immediate identification331 or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately.332 The presence of handcuffs on the suspect will not in itself create an inference that the identification was unduly suggestive.333 Generally, a show-up will be inadmissible when "there was no effort to make the least provision for a reliable identification and the combined result of the procedures employed" establish that the show-up was unduly suggestive.334 Note that transporting a suspect back to the scene of the crime for a show-up identification by the victim is considered a legitimate investigative tool so long as the show-up lasts no longer than required to accomplish its purpose.335

3. Photo Identifications

Unless the parties are known to each other and the photo identification is for confirmatory purposes only, if the accused has been identified in a photographic identification, a hearing is mandatory.336 This photo identification can take three forms: (1) the witness may have selected the accused's photograph from an array of pictures, (2) the witness may have seen the accused's photograph alone or (3) the witness may have selected the accused's photograph after going through a number of photographs on file.

If the witness has given the People a description of the perpetrator, the People should use photographs that match the general description given.337 The photo array shown to a witness must be preserved for the hearing, and failure to do so may lead to the presumption that the array was suggestive.338

Where the witness has selected the photo from the "mug shots" on record, courts have found that the sheer volume of pictures militates against the presence of suggestiveness in certain circumstances.339 Where there is more than one witness, they may not view a photo array together.340

Previously, unless the defense opened the door during trial, the People were prohibited from introducing evidence of a prior photographic identification of the accused because of the inference that the accused has been arrested in the past.341 Effective July 1, 2017, a witness can now testify during trial that he or she identified a suspect from a photograph.342 However, in order to be admissible, a "blind" or "blinded" identification procedure must be used. 343 In a "blind" procedure, the person administering the procedure does not know the suspect's identity. A...

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