ARGUMENTS TO SUPPRESS IDENTIFICATION. Trial identifications fall into only one category: In court identification: That s the man who did it.

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1 ARGUMENTS TO SUPPRESS IDENTIFICATION In terms of time, there are two types of identification: Pre Trial Trial Pre Trial identifications fall into 3 categories: Photopack Showup Lineup Trial identifications fall into only one category: In court identification: That s the man who did it. If a pre-trial identification is successfully attacked, the prosecution will not be permitted to introduce evidence at trial that the defendant was identified at a showup or lineup 1. If the trial identification is successfully attacked, the prosecution will not be permitted to ask the complaining witness to identify the alleged perpetrator of the crime at trial. The trial identification can only be successfully attacked if the defense attorney first successfully attacks the pre-trial identification. It is the improper nature of the pretrial identification that taints the trial identification. Thus, attacks upon the pre trial identification procedure are of the utmost importance. There are three ways to attack the pre-trial identification procedure: THE FOURTH AMENDMENT ATTACK Fourth amendment attacks are all based upon fruit of the poison tree arguments, i.e., the pre trial identification is the fruit of an illegal fourth amendment act. Thus, if the defendant were unlawfully arrested and placed in a showup or lineup, defense counsel could move to suppress the showup or lineup 2. A similar argument could be made if a photograph of the defendant were taken during an illegal detention, which led to a photopack identification, which in turn led to a lineup identification. So also, a photograph obtained by the police during an illegal search, which led to a photopack identification and a subsequent lineup identification could lead to suppression of the lineup identification. Note, however, that since these are all fourth amendment fruit of the poison tree arguments, they can be defeated by the traditional fourth amendment cures for such arguments: independent source, inevitable discovery or attenuation of taint 3. Note also that a lineup cannot be attacked merely because it was held after defendant s arrest on a Payton violation. The Court of Appeals has recently held that since the lineup occurred outside of defendant s home, it is not tainted by a Payton violation 4.

2 THE FIFTH AMENDMENT ATTACK Fifth amendment attacks on pre trial identification procedures are grounded in suggestiveness and are based upon due process considerations. The test for undue suggestiveness is whether the procedure creates a substantial likelihood that defendant would be singled out for identification. 5 The following are various arguments in support of a showing of suggestiveness. Photopacks Although the prosecution cannot introduce evidence of a photopack on its direct case, 6 suggestiveness in a photopack may taint a later lineup or trial identification. The following are various ways in which it can be argued that a photopack is suggestive: Suggestiveness in Photopacks - Defendant s photo is in color and the others are in black and white, or vice versa. 7 - Defendant s photo alone reveals a particular identifying characteristic. 8 - Defendant s photo differs in size from the others. 9 - Defendant s photo is placed in more than one photopack shown to the same witness The police officer conducting the photopack made a suggestive remark to the witness The prosecution failed to preserve the photos for review by the court The witness was shown a large number of photos and preservation would be difficult. 13 Showups A showup is, in effect, a one person lineup. It is by its very nature suggestive and is therefore frowned upon as a police procedure except when exigent circumstances require immediate identification 14 or the suspect is captured at or near the crime scene and can be viewed by a witness immediately. 15 Attacks on showups can thus be made on the initial ground that time was not of the essence in a given situation and the police should therefore have placed defendant in a lineup. They can also be attacked on the following suggestiveness grounds. Suggestiveness in Showups - The showup was held at the stationhouse (inadmissible as a matter of law, unless exigency shown) The showup was held in the presence of multiple witnesses. - The police advised the witness that the perpetrator was in custody.

3 - Restraints were placed upon defendant before or during showup. - Defendant is exhibited near incriminating evidence. Lineups Lineups are the most prevalent form of pre-trial identifications. They usually consist of six people. The lineup itself should be photographed 17. Persons in the lineup may be asked to speak or move 18. If you are present at a lineup you should do your best to remove suggestiveness from it. If you do not you will not be successful in arguing later against conditions that you had the power to change but did not. Things you can do at a lineup include: - Positioning your client in a specific spot. - Placing band aids or other coverings on all participants if your client is the only one with a distinguishing feature. - Having all participants seated to minimize height disparities, if they exist. - Having your client change clothes or having all participants clothes covered, if your client is the only one wearing e.g. a red running suit. - Requesting a sequential lineup, i.e., a lineup when the witness views one person at a time, not knowing how many will be displayed. - Requesting a double blind lineup, i.e., one where the police officer or detective running the lineup does not know which participant is your client. - Requesting the police to say to the witness or witnesses, before the lineup begins: He may or may not be here and If you don t choose anyone, our investigation will continue. Suggestiveness at Lineups - Defendant is the only one with a visible distinguishing facial or other feature. - Defendant is visibly taller or shorter than the other participants. - Defendant is light or darker skinned than the other participants. - Defendant is the only one dressed in clothing similar to that worn by the alleged perpetrator. - Defendant is the only one handcuffed. - More than one suspect is displayed in the same lineup. - A second witness is allowed to see the first witness s reaction to the lineup before the second witness views it. - A police officer says We think we ve got the man who did it, or words to that effect, before the witness views the lineup.

4 The Court of Appeals has ruled that if suggestiveness is shown at a lineup, it is irrelevant that the prosecution can show that the witness s selection of the defendant was based upon a reliable independent source. Once suggestiveness is shown, the lineup is suppressed, irrespective of its reliability 19. THE SIXTH AMENDMENT ATTACK Sixth amendment attacks on pre-trial identification procedures are right to counsel attacks. The right to counsel applies only to corporeal confrontations, i.e. lineups. 20 In New York State, there are four ways in which the right to counsel at a lineup attaches. 1. At the commencement of formal proceedings, whether by indictment, arraignment or the filling of an accusatory instrument Where there has been significant judicial activity on a case Where a defendant has counsel on an unrelated case and a request is made by defendant or counsel to have counsel participate in a lineup Where defendant has counsel on the present case and such representation has been communicated to the police. 24 Note that, with respect to numbers 1, 3 and 4, above, the right to counsel attaches indelibly, i.e., the police may not seek a waiver from defendant unless the attorney is present. In a significant judicial activity situation, the police may seek a waiver from the defendant himself. Note also that if the right to counsel attaches because of the commencement of formal proceedings or because of significant judicial activity on the case, no lineup may be conducted without counsel, unless a valid waiver has been obtained or unless exigent circumstances are present. 25 On the other hand, where the right to counsel arises merely from the presence of an attorney in the case (absent commencement of formal proceedings and absent significant judicial activity) the police do not have to wait until the attorney is present in order to comply with their responsibility in this area. All they have to do is make reasonable efforts to notify the defense attorney of the lineup and give him a reasonable opportunity to appear. If they do this and the defense attorney does not appear at the lineup, there is no right to counsel violation. 26 It follows from this that if there is a pre commencement of formal proceedings lineup contemplated, and the police are aware that defendant has an attorney on an unrelated case, but neither defendant nor the attorney makes a lineup request, there is no right to counsel. Similarly, if there is a pre-commencement lineup contemplated and defendant has no attorney but requests one at his lineup, there is no right to counsel. 27

5 Recently, in the case of People v. Mitchell 28 the Court of Appeals held that although family members cannot request counsel on behalf of an adult defendant, they can do so on behalf of juvenile offenders. THE IN-COURT IDENTIFICATION INDEPENDENT SOURCE If a defense attorney successfully attacks a pre-trial identification procedure, then the in-court identification will also be suppressed unless the prosecution can show at the pre-trial hearing, by clear and convincing evidence, that the in-court identification is based on an independent source of the witness. 29 This independent source is different from the independent source used by the prosecution to rebut fruit of the poison tree arguments in fourth amendment situations. In fourth amendment situations, independent source means that the police seized the evidence in question not by some illegal means but by independent, lawful means. In the identification context, independent source has nothing to do with the police and everything to do with the eyewitness. In looking at independent source situations in identification proceedings, courts are trying to determine whether, if a witness is permitted to identify a defendant in the courtroom in front of a jury, the witness is doing so because his mind has been tainted by the improper pre-trial identification procedure on whether he is doing so because he has an independent basis, wholly unrelated to the improper pre-trial procedure, for pointing to the defendant. In the former case, where the witness s mind is tainted, he would not be permitted to identify the witness in court. In the latter case, where he was proceeding from a reliable independent source, he would. To take an extreme example, suppose the witness viewed a lineup found to be blatantly suggestive in violation of due process. Testimony as to the lineup would be suppressed, but the in court identification would still be permitted if the witness were to testify at the pre-trial hearing that he used to work with the perpetrator and knew him for years. The court in such a situation could easily find that the in court identification was based upon a source independent of the faulty lineup. The inquiry in these situations thus seeks to determine whether the eyewitness had a repository of information about the accused either from previous knowledge, or, from firsthand observation at the time of the crime. In the Supreme Court case of Neil v. Biggers 30 the Supreme Court adopted a totality of circumstances approach and noted certain criteria to be considered by the hearing judge in determining whether an independent source existed. Those and others are as follows: The witness s ability to observe

6 - age - physical health at time - eyesight - lack of alcohol or medication The witness s opportunity to observe - length of time of observation - lighting conditions - weather conditions - lack of competing stimuli - lack of obstructions between witness and perpetrator - distance between the two The witness s degree of attention If a successful attack has been made by the defense on a pre trial identification procedure, and if the prosecution can not prove, at the pre trial hearing, by clear and convincing evidence, that an independent source exists, then the in-court identification will also be suppressed and the witness will not be permitted to testify that the defendant is the one who committed the crime. 1 In New York State, the prosecution is automatically barred from introducing evidence of a photopack identification on its direct case. People v. Cioffi 1 NY 2d 70 (1956) 2 U.S. v. Crews 445 US 463 (1980) 3 People v. Gethers 86 NY 2d 159 (1995), People v. Pleasant 54 NY 2d 972 (1981) 4 People v. Jones 2 NY 3d 285 (2004) 5 People v. Chipp 75 NY 2d 327 (1990) 6 See fn 1, supra. 7 People v. Shea 54 AD 2d 722 (1976) 8 See fn 7, supra. 9 See fn 7, supra. 10 People v. Brown 117 Misc 2d 587 (1983) 11 People v. McQueen 170 AD 2d 696 (1991) 12 People v. Davis 172 AD 2d 555 (1991) 13 People v. Jackson 161 Misc. 2d 45 (1994) 14 People v. Rivera 22 NY 2d 453 (19 ) 15 People v. Love 57 NY 2d 1023 (19 ) 16 People v. Riley 70 NY 2d 523 (1987) 17 People v. Foti 83AD 2d 641 (1981) 18 People v. Neptune 193 AD 2d 703 (1993) 19 People v. Adams 53 NY 2d 241 (1981) 20 U.S. v. Ash 413 US 300 (1973) People v. Collins 84 AD 2d 35 (1981) aff d. 60 NY 2d 214 (1983) 21 U.S. v. Wade 388 US 218 (1967) Gilbert V. Cal. 388 US 263 (1967) Kirby V. Ill. 406 US 682 (1972) Moore v. Ill. 434 U.S. 220 (1977) People v. Blake 35 NY 2d 331 (1974) 22 People v. Coleman 43 NY 2d 222 (1977) 23 People v. Coates 74 NY 2d 244 (1989) 24 People v. La Clere 76 NY 2d 670 (1990) 25 People v. Settles 46 NY 2d (1978), People v. Coleman 43 NY 2d 222 (1977)

7 26 People v. Davis 172 AD 2d 555 (1991), People v. Polimeni 150 Misc. 2d 485 (1991), People v. Burney 249 AD 2d 84 (1998) People v. LoPizzo 173 AD 2d 562 (1991) 27 People v. Hernandez 70 NY 2d 833 (1987), People v. Hawkins 55 NY 2d 474 (1982), People v. Coleman 43 NY 2d 222 (1977) 28 NY3d (5/20/04) 29 People v. Ballott 20 NY 2d 600 (1967) US 188 (1972)