Friday, October 27, 2017

Ch…Ch…Ch…Changes (in the law of identification evidence)

by Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

As you may know, there are several new statutes that were passed or amended this year which will have a major impact on criminal practice.  They include statutes which raise the age for criminal responsibility and change courts in which cases of youths to whom the statutes apply are handled, statutes which require recording of interrogation in some cases, and changes in the law relating to identification evidence. 
The newly written statutes are dense and awkward, and it takes a few reads (and perhaps some additional interpretation and a drink or two) to understand what they are saying.  The following comments about the changes in statutes relating to identification evidence are an effort to make this muddy mess a bit clearer. 

The statutes amended and/or created include CPL 60.25, CPL 60.30, CPL 710.20, CPL    710.30, Executive Law 837 and the Family Court Act statutes relating to identification.  In addition, a model policy was created (as discussed below).  The thrust of most of these statutes is to make photo identifications admissible at trial IF they were done in a way that is deemed to be less suggestive – methods described as either “blind” or “blinded.”  The statutes also ensure that even if a photo or video identification was not “blind” or “blinded”, there may be an in-court identification so long as the procedure complied with constitutional requirements.  We usually take that to mean that the procedure was not unduly suggestive, which would implicate due process issues, but I’d like to suggest that we broaden our view of what due process requires and start thinking about whether a procedure affected reliability.  And I’d encourage you to read a recent Fourth Department decision, People v. Reeves, 152 AD3d 1173 (Fourth Dept. July 2017).

Please note – I have not yet practiced under these statutes, so I cannot foresee the problems within the statutes

1.  Vocabulary

The statutes repeatedly refer to “Pictorial, photographic, electronic, filmed or video recorded reproduction.”  This phrase is used to include photos and videos that may be used during identification proceedings.  I believe it is intended to be as broad as possible so that we will not argue that certain kinds of pictorial representations are not within the statute, and therefore not admissible at trial.

Blind – According to the Division of Criminal Justice Services Model Policy (more on this below) a blind procedure is “An identification procedure where the administrator does not know the identity of the suspect.”  A “blind” procedure is one in which the person administering it (usually a member of law enforcement) does not know who the suspect is.  In other words, the administering officer does not know which of the photos is the suspect.  A blind procedure theoretically requires two officers – one to select the suspect’s photo and then place fillers in the array, and another who DOES NOT KNOW who the suspect is to display the array to the witness.

Blinded – According to the DCJS Model Policy, a blinded procedure is “an identification procedure where the administrator may know who the suspect is, but by virtue of the procedure’s administration, the administrator does not know where the suspect is in the array.”  This can be done by creating a few folders with arrays, with the suspect in different places in each folder, and then having the witness select one photo for use during the procedure. 

The goal of these procedures is to prevent the administering officer, either intentionally or unintentionally, through words or actions, from suggesting to the witness which person should be selected during an identification procedure.  Neither blind nor blinded are best practices.  “Double blind”, in which the administrator does not even know if the suspect is in the array, is a better practice.

2.  History

Through the course of the evolution of New York law on identifications, it has been traditionally held that absent some unusual circumstances, identifications based on photographs would be inadmissible at trial, both due to the possibility that a photo could be altered or distorted, and that the photo in possession of the police would imply that the defendant had a criminal record and the photo was a mug shot.  (See People v. Perkins, 15 NY3d 200 (2010).

In recent years, the Court of Appeals also concluded that because photos were not admissible at trial, CPL 710.30 did not require notice of photo arrays. 

3.  CPL 60.25 – A witness who cannot identify at trial

CPL 60.25 existed before the new identification law came into effect.  That law permitted a witness who is unable to identify the defendant at trial to testify to the witness’s viewing of the defendant during the incident or at some time related to the incident, and then at a later identification proceeding.  Another witness, usually a police officer, would then link that identification to the defendant –

“And who was the person the witness selected in position number six at the lineup?”

“The person the witness selected in that lineup proceeding was John Doe.”

 “Do you see John Doe here in court today?”

 “Yes, I do.”  “Where is he?”  “He’s sitting at the table over there (pointing to the defendant).”

Historically, prior photo arrays could not be used to establish identification by a witness who is unable to presently identify.  Under the amended statute, if the prior identification was “blind” or “blinded,” the prior procedure is now admissible even if it involved photos.

CPL 60.25(c) states that the failure of a public servant to use blind or blinded procedures will result in preclusion of the testimony of the identification procedure as evidence in chief, but shall not lead to suppression under CPL 710.20(6) which bars identification evidence obtained as a result of an “improperly made previous identification of the defendant.”  (Our usual Wade reasons – suggestiveness, due process violations, unreliability of the identification.)   What this seems to mean is that the prior ID procedure may not be admissible AS EVIDENCE IN CHIEF if it has not been blind or blinded, but if, as a result of a Wade hearing, the Court concludes there were no constitutional violations, the witness may make an in-court identification.  The weird thing here is that this statute addresses when a witness cannot make an in-court identification based on inability to presently identify, so I’m not sure about what the goal of this piece of legislation is.  Although it may be to make the procedure admissible if not used as evidence in chief.  Perhaps if the door is opened? 

One other important note about CPL 60.25 generally is that it only applies to circumstances in which the witness cannot identify due to present inability.  Other reasons – death, fear, etc. – are not sufficient to permit a prior ID procedure without present ID to come in.  See People v. Bayron, 66 NY2d 77 (1985), People v. Cwikla, 46 NY2d 434 (1979), People v. Quevas, 81 NY2d 41, People v. Patterson, 93 NY2d 80[TD1] .
If the basis for the witness’s inability to identify is uncertain, you may wish to request a hearing or voir dire of the witness during trial outside the presence of the jury. 

In our practice, it is less common for us to have witnesses who cannot identify the defendant in court, so this statute will be less frequently applied than…

4.  CPL 60.30 – A witness who can identify at trial

The amendments to CPL 60.30 are likely to have a much greater impact on our work.  In the past, CPL 60.30 permitted a witness to testify both about a previous identification procedure in which the defendant was viewed “in the flesh,” such as a lineup or showup, and which procedure was not deemed to have violated constitutional prohibitions, and to identify the defendant at trial.  However, testimony about prior identification procedures that used photographs were not generally admissible.  (For a discussion about identifications of defendants on video during the incident, see People v. Gee 99 NY2d 158 (2002). 

The amendment to this statute now permits a prior identification using photographs or other media made by a witness WHO IS ABLE TO IDENTIFY AT TRIAL to be admitted at trial as long as the procedure was blind or blinded and comports with constitutional requirements.  The language is a bit strange, since in order to say the procedure has to be blind or blinded to be admissible, the statute incorporates by reference the blind or blinded requirement of CPL 60.25, which refers to blind or blinded. 

Although the statute permits this evidence to be admissible, we may still wish to raise arguments about bolstering.  As these statutes are new, we may also want to think about whether there are any constitutional challenges to raise.  (And if so, don’t forget to put the A.G. on notice when raising a constitutional objection to the validity of a statute.)

5.  CPL 710.60

CPL 710.60 was amended to incorporate the photo and other pictorial or video identification procedures.  In addition to specifying that a court may suppress evidence of a prior identification procedure involving photos, videos, etc., based on an improper prior identification, the statute notes that a claim that the prior identification using photos, videos, etc. was not blind or blinded shall not be a basis to suppress evidence. 

So what does this mean?

Here’s my take: 

Under CPL 60.25, if a witness cannot identify at trial, and this is established on the record, if the procedure was blind or blinded and did not violate constitutional rights (suggestiveness, due process violations) the prior procedure comes in.

If the witness cannot identify at trial, and the procedure was not blind or blinded, it does not come in.  Since they can’t identify at trial, I don’t see how the 710.60 concerns come into play.

If they can’t identify at trial, it was blind or blinded, but it violated Wade/due process rights, the prior procedure does not come in. 


Under CPL 60.30 (witness is able to identify at trial)

If the procedure was blind or blinded and did not violate constitutional rights, prior ID and in-court ID permitted.

If not blind or blinded, but did not violate constitutional rights, prior does not come in but in-court ID can be made.

If blind or blinded, but violated constitutional rights, neither comes in.

6.  CPL 710.30(1)

This statute now clarifies the notice requirements of 710.30, muddied by People v. Grajales, supra.

Under the amended version of CPL 710.30(1), the prosecution must provide a 710.30 notice if a witness has engaged in a photo or video identification proceeding previously.

7.  Executive Law 827(21)

The Executive Law was amended to require the DCJS to promulgate “a standardized and detailed written protocol that is grounded in evidence-based principles for the administration of photographic arrays and live lineup identification procedures for police agencies and standardized forms for use by such agencies in the reporting and recording of such identification procedures.”  The statute describes some of the areas to be covered.  While recommended, the policies are model policies and not mandatory, which is a huge disappointment to many who were hoping for law requiring evidence based procedures (and not just gently suggesting them).  Which brings us to:

8.  Model Policy:

In June of this year DCJS released its model policies, based on the requirements of the Executive Law.  While they are not mandatory (and not even necessarily best practices), they are better than what we have seen, and should be used to argue at the hearing and trial about how the police failed to apply better and model policies to their work, and that failure increased the likelihood that the defendant was misidentified. 

The Model Policy can be found here: http://pceinc.org/wp-content/uploads/2015/06/Eyewitness-Identification-Model-Photo-Array-and-Lineup-ID-Procedures.pdf.   And I urge you to scrutinize it, especially as you prepare for hearings and trials involving these issues.  

One of the features of the Model Policy is that it requires confidence statements from a witness, though it discourages numerical assessments (like “I’m 80% sure).  If our departments start using them, it should be interesting to see what witnesses claim about their certainty of the identification.

9.  A few thoughts on practice

First, in every case we get, we may wish to include a motion that “If any witness was involved in an identification procedure required by CPL 60.25 or CPL 60.30 to be blind or blinded, and such procedure was not blind or blinded, defendant moves for an order precluding the use of any such identification by the witness at trial.  Note – this does not substitute for your Wade motion following receipt of an adequate 710.30 notice, or your motion to preclude identification in the absence of sufficient notice.

Additionally, we really have to think about how to expand the scope of our cross-examinations at Wade hearings.  For example, looking at the model protocol, you may wish to question on whether the police have taken the online course, whether they followed procedures for selection of fillers, etc. You will want to address the specifics of how fillers were selected, and whether the description given by the witness was incorporated into selection of the suspect and filler photos. (If the police have ignored the description and gone after “the usual suspects,” isn’t that suggestive?)

Dig into the Model policies and consider all the ways you might use them to expand your cross.  And take a look at People v. Reeves, supra, in considering how to craft your arguments.  For additional discussion of these issues, see Barry Kamins analysis in the New York Law Journal http://www.law.com/newyorklawjournal/almID/1202794793850/?slreturn=20170925153256.

 [TD1]How does one establish this? Voir dire witness outside presence of jury?

Tuesday, August 8, 2017

Challenging the assumption that an innocent person would not plead guilty

I recently challenged on appeal the validity of my client’s guilty plea based on my client’s questionable mental capacity and ability to understand the plea bargaining process. Ignoring the import of my client’s diminished capacity, the prosecutor on appeal (in typical fashion) argued that “one could assume” my client would not have “readily” admitted to the offense in open court if he had not committed it.

It is remarkable that this argument is still being made given the impressive number of wrongful convictions overturned throughout the country involving false confessions and guilty pleas. And I stated just that in my reply brief, while parenthetically citing statistics from the National Registry of Exonerations and the Innocence Project, before making arguments more specific to my client’s case.

The National Registry of Exonerations reported in November 2015 that 15% of the then-known exonerees pleaded guilty and suggested that the actual number of innocent persons who pleaded guilty is significantly higher (National Registry of Exonerations, Innocents Who Plead Guilty, Nov. 24, 2015, http://www.law.umich.edu/special/exoneration/Documents/NRE.Guilty.Plea.Article1.pdf). According to its website 382 of the 2,078 exonerations currently in the in the Registry (18%) pled guilty.

The Innocence Project has a page on its website, entitled “When the Innocent Plead Guilty,” that describes the cases of 31 of its exonerees who pleaded guilty to crimes they did not commit (a shocking number of which were homicides and sex offenses) and served a combined total of more than 150 years in prison before they were exonerated (Innocence Project, When the Innocent Plead Guilty, Jan. 26, 2009, https://www.innocenceproject.org/when-the-innocent-plead-guilty/).

In November 2014, United States District Court Judge Jed S. Rakoff (Southern District of New York) wrote an article for The New York Review of Books, entitled “Why Innocent People Plead Guilty” (available at http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/), in which he recognized the shocking prevalence of false guilty pleas and advocated for a pilot program of judicial involvement in the plea bargaining process in an effort to reduce the epidemic. While I’m not sure I agree that judicial involvement would serve as a cure, Judge Rakoff’s observations about false guilty pleas are worth quoting:


[T]he prosecutor-dictated plea bargain system, by creating . . . inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. . . . Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. . . .
It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea.
* * * *
While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent defendant to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proven so. Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation. Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted . . . —but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.

For whatever it’s worth (which may not be much since I have only been in practice for less than two years), I have some thoughts on the practical implications of this problem – many of which are (or should be) obvious.

To start, when a client confesses to the police, we should be open to the possibility that the client did not actually commit the confessed-to offense. While it may be more often the case that a client who initially claims innocence turns out to be guilty, we cannot foreclose the possibility that the opposite may be true. Thus, we should be diligent in asking those clients who confess to describe for us what actually happened, what they told the police, and what the circumstances were surrounding their confession – and not just rely on police reports, recorded-interrogations, and officer testimony to do that job. And we often need to do so more than once, since we all know that it takes time to earn a client’s trust – if we ever earn it at all.

Before we recommend that a client plead guilty, we need to make sure that it is truly in the client’s best interest to do so and not simply more convenient. We need to know whether we are capable of mounting an effective defense and be careful that we are not telling a client that their chances of acquittal are lower than they are. And if we know or suspect that a client has limitations, we need to do our due diligence to make sure that the client understands what a guilty plea connotes and its consequence.

Although these suggestions come across as obvious, we need to honestly ask ourselves how often we fail to take the time to actually put these things into practice.

We also have what I believe is an obligation to educate the public of the prevalence of false confessions and guilty pleas in an effort to change the public’s perception. As Judge Rakoff recognizes in his article,


Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.

One cannot assume that an innocent person would not confess, and one cannot assume that an innocent person would not plead guilty.

Defense attorneys, especially those who handle appeals and post-conviction motions, as well as civil rights attorneys who handle wrongful conviction suits, should be prepared to challenge prosecutors, opposing counsel, judges, and members of the general public who try to argue otherwise.  Members of the defense bar also should be careful not to make the same assumptions. Otherwise, in my opinion, we do a disservice to our clients.

Sunday, July 23, 2017

Discovery of Search Warrants

by Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Often prosecutors do not provide us with search warrants and related documents in our initial discovery packets.  Although there is no particular statute that directly states that we are entitled to search warrants and affidavits, CPL 240.20 does have a catchall provision that should be cited, and there is case law support.  And we should always cite the New York and United States Constitutions' right to be free from unreasonable search and seizure - if we can't challenge the search, how is a court ever to determine whether it was unreasonable?   

CPL 240.20(1)(h) requires the prosecutor disclose "Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States."  Since the search issue is one of constitutional dimension, you should cite this statute. 

Some of the cases that support our right to discovery of search warrants include People v. Velez 147 Misc. 2d 865 (Sup. Ct., NY County, 1990), which specifically addressed the issue, reviewed the case law up to that point, and considered  the prosecution's effort to obtain a protective order.  The Judge cited People v. McCall, 17 NY2d 152, in which the Court of Appeals stated, "A refusal to permit a defendant to examine the facts upon which his privacy has been broken into amounts to saying that any search warrant...is all right if a Judge has seen fit to sign it."   

In People v. Chahine, 150 Misc. 2d 242, (Crim. Ct, NY County, 1991) the Judge stated, "At the outset it is noted that search warrants and search warrant applications are discoverable under CPL 240.20(1)(h).  (See People v. Brown, 104 Misc. 2d 157, 163)."  Notably, the E.D.N.Y. quoted this language from Chahine in a footnote just this year in Whitehead v. Haggett,2017 U.S. Dist. LEXIS 93629, stating, "Contrary to ADA Byrne's statement, "search warrants and search warrant applications are discoverable under CPL § 240.20(1)(h)." People v. Chahine, 150 Misc. 2d 242, 243  (N.Y. County Crim. Ct. 1991). 

In People v. Nottage, the New York City trial court stated, "Search warrant applications are not exempted from discovery on the ground that disclosure would tend to reveal the identity of confidential informants, but reasonable protective measures may be ordered by the court in order to assure the physical safety of the informer. People v. Velez, 147 Misc 2d 865,  (New York County 1990)."  People v. Nottage, 11 Misc. 3d 1052(A), 1052A,  2006  (N.Y. City Crim. Ct. Feb. 9, 2006)

Prosecutors may seek protective orders claiming individuals may be endangered by disclosure of the search warrant application, affidavits, etc.  See People v. Castillo, in which the Court of Appeals recognized that a sufficient showing must be made by the prosecution, and sufficient procedures engaged in by the trial court, to ensure a defendant's due process rights are protected when the search warrant affidavit is denied.  The Court implicitly recognizes that a search warrant is not automatically excluded from discovery. 

Our conclusion that a defendant's opportunity to participate in suppression proceedings must yield in some cases to the need for confidentiality is not intended to suggest that courts may routinely grant the People's application to seal the record. The procedures  sanctioned here are reserved for those cases in which the reliability of the evidence of probable cause and the necessity for confidentiality are clearly demonstrated. In this case, however, both the issuing Judge and the suppression court questioned the police officer affiant and the informant under oath and concluded that there was probable cause for the search, that the police officer's affidavit was truthful and that there was an overriding need for confidentiality. Addressing the additional allegations of fact contained in defense counsel's affidavit in support of the motion to suppress, the court found, after sufficient inquiry and on sufficient evidence, that there was no taint. We conclude, therefore, as did a unanimous Appellate Division, that there is support in the record for the suppression court's findings and that under the circumstances the procedures it followed did not offend due process. 
People v. Castillo, 80 N.Y.2d 578, 587, (N.Y. Dec. 22, 1992) 

You should include in motion papers a request for the warrant, affidavits in support of the warrant, the return, and any other documents that may have been created in relation to the warrant application and issuance.  If the prosecutor objects and claims the need for a protective order, If the Court grants the protective order, request a redacted copy.  If that is denied, press to ensure the Court engages in at least the process described in Castillo: 

An examination of the record establishes that the court diligently protected defendant's rights in the case before us. In determining whether to disclose the informer's identity or statements, it followed the four-step procedure set forth in People v Seychel (136 Misc 2d 310). In the first step the court reviewed the search warrant to determine whether it alleged probable cause in this case by application of the Aguilar-Spinelli test (see, People v Griminger, 71 NY2d 635), or whether it was perjurious on its face. If the supporting affidavit had appeared perjurious on its face, the court would have conducted an in camera hearing to determine if the affidavit contained perjury and if it did, would have given the People the choice of turning over the affidavit for a hearing or discontinuing the prosecution (see, Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181). Finding neither, the court next proceeded to conduct an in camera, ex parte inquiry of the informant and examined the People's exhibits to determine whether the informant's  life and/or future investigations would be jeopardized by disclosure. Confidentiality was deemed necessary, and the court then proceeded to try and redact portions of the affidavit to conceal the informant's identity while giving the defendant a description of the information resulting in his arrest. It found this impossible and therefore ordered the People to produce the informant for a Darden-type inquiry in which it could evaluate credibility (see, People v Darden, 34 NY2d 177,  The court made a similar inquiry concerning the April 5 entry into the apartment and found the search of April 6 untainted by the prior police activity on April 5.
Based upon these hearings, the suppression court denied defendant's motion for discovery and granted the People's request for a protective order prohibiting disclosure. We conclude it properly exercised its discretion when it did so.
People v. Castillo,  80 N.Y.2d 578, 586-587, 607 N.E.2d 1050, 1054-1055, 1992 N.Y. LEXIS 4243, *16-17, 592 N.Y.S.2d 945 (N.Y. Dec. 22, 1992)
Keep in mind, if you have a search warrant case, you must try to get all of the documents and scrutinize the warrants for what is missing.  You may still be looking for hearings.  Consider whether items were seized that were not covered by the warrant, items were seized from locations not covered, items were seized from the person of your client when the warrant addressed a location, and whether, if the information supporting the warrant did not provide a sufficient basis for its issuance, there was a sufficient legal basis for search otherwise.  And if the Court declines to provide you with the entire search warrant and affidavits, make sure you request that the court mark and make part of the record (as a sealed document) the original warrant, affidavit and other associated documents. 

Sunday, May 28, 2017

Under SORA Guidelines, Grooming and Promoting a Relationship are Two Different Concepts


by
Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

During SORA hearings, our clients often face the claim that they established or promoted a relationship for the purpose of victimizing the complainant.  "The Guidelines provide that 20 points should be assessed under risk factor 7 if '[t]he offender's crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship' (Guidelines, factor 7)." People v Cook, 2017 N.Y. LEXIS 723, *5-6, 2017 NY Slip Op 02468, 3 (N.Y. Mar. 30, 2017)
Prosecutors often try to assess these points even when the defendant and complainant are well known to each other.

In People v. Cook, supra, the Court of Appeals clarified the purpose of Factor 7, and reduced the defendant's sex offender level.  The Court stated,  

In arguing that points should be assessed to defendant under risk factor 7, the People conflate the concepts of grooming a victim and promoting a relationship for purposes of victimization. It is clear that points were not intended to be assessed under that risk factor based on grooming, in and of itself; instead, the assessment of those points should be determined based on the nature of the relationship in which the grooming takes place. If risk factor 7 were interpreted to require the assessment of 20 points for every offender who groomed a victim — in addition to offenders who are strangers or professionals — then the vast majority of offenders against child victims would be assessed those points. Such a blanket assessment of points is inconsistent with the purpose of the Guidelines, namely, to require enhanced community notification where abuse occurs in more distant relationships, which indicate an increased risk of reoffending.
People v Cook, 2017 N.Y. LEXIS 723, *9-10, 2017 NY Slip Op 02468, 4-5 (N.Y. Mar. 30, 2017)

If you are uncertain as to whether points should be assessed for a particular risk factor, a great place to start your research is the New York guidelines, with explanations of the purpose for various factors and when points should or should not be assessed, found here - http://www.nycourts.gov/reporter/06_soraguidelines.pdf


Wednesday, May 24, 2017

Litigating Suggestive Identification Procedures

by
Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Sometimes we don't think about all of the factors that must be considered at a Wade hearing.  Sometimes judges tell us the preliminary conversations between witnesses and the police are not relevant.  In People v Gambale (2017 NY Slip Op 03658 [4th Dept May 5, 2017), the Fourth Department provided support for our need to be expansive in our Wade litigation and our claims that we are entitled to explore these details.

Gambale involved a set of facts we often encounter and may not be sufficiently attuned to.  A robbery occurs at a hotel.  The police believe they know who the perpetrator is, and contact the suspect's parole officer.  In calling, the investigator "inquired about her role as a parole officer for defendant and her familiarity with him. Upon confirming that the parole officer was familiar with defendant, the investigator proceeded to ask her to report to the police department in order to view the video and to determine if she recognized anyone depicted therein. The parole officer identified defendant as the person committing the robbery."

Although we may not always think about the steps that are used to set up an identification procedure, it is extremely important to explore the preliminary conversations that lead a witness to participate.  When we are dealing with law enforcement and parole witnesses, we may forget to consider that they are still witnesses, and that a suggestion that a person with whom they are familiar may be involved in an incident can be suggestive for identification purposes.  The Fourth Department stated,

Here, we agree with defendant that, contrary to the court's determination that "[t]here was no influence or suggestion" by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant (cf. Collins, 60 NY2d at 220, affg 84 AD2d 35, 39-40). Instead of requesting the parole officer's assistance in identifying someone from the video without preemptively disclosing the subject of his investigation (emphasis added), the investigator engaged in a conversation "about her being a parole officer for [defendant]." During the conversation, the investigator "asked [the parole officer] if she was familiar with [defendant]" (Emphasis added).The parole officer responded that she had "lots of contact" with defendant, so the investigator proceeded to ask her to "come down and view a video." The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer's viewing of the video, engaged in the type of undue suggestiveness identified in Collins inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant (see id. at 220) (Emphasis added.). 
On this finding that lawful enforcement engaged in undue suggestiveness, the Appellate Division remitted the case to the trial court (Judge Randall) for a determination as to whether the identification was confirmatory.

Special Assistant Monroe County Public Defender Drew DuBrin is the attorney who successfully represented Mr. Gambale on the appeal.,

The lesson to be learned from this Gambale is that when you are investigating issues of suggestiveness of an identification procedure, it is not enough to look at the photo or lineup for the obvious physical differences (though you of course, must do that).  Counsel must also consider the circumstances of the display of the defendant or his/her photo, the body language, physical movements, the conversation, and the details leading up to the display - phone calls and prior contacts - in supporting an argument for suggestiveness.  Consider preparing your hearing with the following issues to be explored (and these are just a few ideas):

Photos - background, clothing, jewelry, scars, tattoos, hats, size of face, expressions, anything else unusual;
Appearance of the defendant - age, weight, skin tone, features, hair length, hair color, scars, tattoos, particular features
Is there anything unusual about your client's appearance that was omitted from the description?  If so, you have to make a strategic decision as to whether to raise that at the hearing or at trial.
Conversations between the witness and investigators prior to the viewing
Aspects of identification procedures that are now known to be suggestive, but were ignored (such as the lack of a double blind lineup or display)
Details of who was present and what was said, minute by minute, during the display.
Whether other people had communicated with the witness about who the perpetrator was prior to the display, or used their cell phones or other social media to point out the suspect to the witness

It is helpful to have an investigator speak to witnesses prior to the hearing to determine what was said by the police during the procedure.  Sometimes witnesses, without having yet been prepped, will unwittingly acknowledge that the officer's words were suggestive.  If so, have your investigator ready to testify. 

Monday, May 22, 2017

Limits on the Prosecutor's Use of PowerPoint Presentations In Summations

by

Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

April's Court of Appeals decisions included two cases addressing the use by prosecutors of PowerPoint presentations in their summations.  PowerPoint is being used more and more frequently, and it is important to consider what the Court has deemed permissible, and what you should do (object, ask for limiting instruction at the time and an additional instruction during the final instructions?) during the trial if the Court does permit it.  

In People v. Anderson, the Court noted:

At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel's argument, or in the court's admonitions. We reject defendant's position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence. In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations.


So you want to consider, if objecting, whether there is a "clear delineation between argument and evidence", whether the added captions or markings are consistent with trial evidence and the fair inferences to be drawn from the evidence", and whether the superimposed text is obviously not made to look like part of the exhibit (thus not misleading).  

Make sure the PowerPoint is preserved in the record for appeal - ask that the disk be marked and preserved.  And consider using them yourselves.  In this case, the Court did not find it reversible error that there were text boxes around the defendant's face in one slide, with comments added.  The Court stated, "In our view, the added text accurately tracked the witnesses's testimony and the fair inferences to be drawn from the evidence, and the placement of the text boxes around defendant's face was "not simply an appeal to the jury's emotions" (Santiago, 22 NY3d at 751)...Nonetheless, even accepting defendant's position that this slide was objectionable, the display of this slide alone did not deprive defendant of a fair trial. Instead, as in Santiago, "the objection to the PowerPoint presentation that defendant now raises is not so 'clear-cut' or 'dispositive' an argument that its omission amounted to ineffective assistance of counsel" (22 NY3d at 751)."


Justice Rivera recognized the powerful impact of visual aids, as borne out by research in her dissent in Anderson:

Every person who relies on visual aids to communicate a message is likely cognizant of what the science bears out: the medium of delivery has the potential to powerfully influence the way the message is heard and retained (see Lucille A. Jewell, Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy, 19 S Cal Interdisc LJ 237, 293 [2010]). Research shows that pictures are typically remembered better than words (see Mary Susan Weldon & Henry L. Roediger, III, Altering Retrieval Demands Reverses the Picture Superiority Effect, 15 Memory & Cognition 269, 269 [1987]). Indeed, "with visual information, people believe what they see and will not step back and critically examine the conclusions they reach, unless they are explicitly motivated to do so. Thus, the alacrity by which we process and make decisions based on visual information conflicts with a bedrock principle of our legal system — that reasoned deliberation is necessary for a fair justice system" (Jewell, supra, at 293). This can make the use of images at trial particularly problematic when combined with language, as "annotating images with text . . . exacerbates the interpretive distortion of images" (Elizabeth G. Porter, Taking Images Seriously, 114 Colum L Rev 1687, 1755 [2014]). Particularly troubling in the legal context are recent studies showing "that photos that relate to, but do not provide any evidence for, a claim . . . can nudge people towards believing that the related claims are true, whether they are true or not" (Eryn Newman & Neal Feigenson, The Truthiness of Visual Evidence, 24 The Jury Expert, 5:1 [Nov 2013]; see also Eryn Newman et al., Nonprobative photographs (or words) inflate truthiness, 19 Psychonomic Bulletin & R 969, 973 [2012] [studies have suggested that "the mere presence of non-probative information such as photos might rapidly inflate the perceived truth of many types of true and false claims" and that this effect can last for up to two days])[FN3]. Furthermore, "images are much more immediately and tightly linked with emotion than is text," so "while images offer a wealth of creative and effective communication tools for lawyers, the very elements that make [*7]them persuasive pose dangers to the integrity of the decisionmaking process" (Porter, supra, at 1755-1756).[FN4]
I have previously addressed how visual imagery can be particularly impactful in summation,

"when 'any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury' (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since '[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments' (id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, '[t]he right to the final word has a psychological impact that makes it a forensic prize' (Siegel, New York Practice § 397 at 692 [5th ed 2011])."

(People v Santiago, 22 NY3d 740, 754 [2014] [Rivera, J., dissenting]). The last side to comment and deploy a visual presentation of its view of the case therefore gains an edge in persuading the jury as it commences deliberations. In the end, if visual tools did not enhance the rhetorical impact of the spoken word or persuade the viewer of the logic of an advocate's reasoning, the prosecutor would not take the time to mark up photos of exhibits, embed those photos with text and images suggesting defendant's guilt, and present those images in a PowerPoint slide show, as was done here.


Knowing that such a powerful and potentially persuasive tool exists, shouldn't we all start considering not just objecting, but adding PowerPoint to our toolboxes?