Sunday, April 26, 2009

If At First You Don't Succeed

What are the purposes of pre-trial identification procedures? Is it only to have the witnesses identify a suspect or should they also be used to determine the witnesses' reliability? The Fourth Department confronted this issue in People v White (2009 NY Slip Op 03290 4th Dept 4/24/09).

Identification testimony is powerful evidence of guilt. Yet, misidentification is the single greatest cause of wrongful conviction. So what should the police do when they discover that the person whom the witness stated he was 70 percent sure committed the crime could not have done so? Does that cast questions about the reliability of that witness generally? Does it require the police to take additional measure in conducting future procedures with that witness to insure that whoever is picked actually is guilty?

In White the Fourth Department ruled that under these circumstances the police had no duty to include the wrongfully identified person's photograph in future photo array, "since the police are not required to include a photograph of a person who has been ruled out as a suspect."

How confident should we be that the second time was a charm?

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