Recall that we noted in the last post that presumptions may not be invoked where the underlying facts needed to support them are not present (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).  When are the underlying facts insufficient to warrant invoking a presumption?  As you might expect, there’s no black on white rule, so we’ll lay out the considerations below.  

Consider a common fact pattern: police find a loaded handgun under the front seat of a car occupied by the defendant and two others. All three are charged with Criminal Possession of a Weapon in the Second Degree.  As is typically the case, there is no direct proof bearing on defendant’s alleged intent to unlawfully use the weapon found in the vehicle, nor is there any proof regarding defendant’s actual possession or knowledge of the presence of the weapon in the vehicle.  So, the prosecution’s case relies on two presumptions: first, that everyone in the vehicle is presumed to possess the weapon (Penal Law § 265.15[3]) and second, that one who possesses a loaded weapon is presumed to do so with the intent to use it unlawfully against another (Penal Law § 265.15[4]). 

We’ll talk about problems with presumption stacking next time (sort of like multiplying fractions - you wind up with a smaller, not a greater number or burden of proof).  Leave that aside for now while we consider the use of each presumption independently.  What does case law say about the requisite factual basis?  With apologies for citation format, then:

“Presumptions must be carefully scrutinized before they will be allowed to operate against an accused since there is a real and substantial possibility that they will conflict with the overriding, more fundamental presumption of innocence accorded to every defendant” (Leary v United States, 395 US 6).  Absent a “a reasonably high degree of probability that the presumed fact follows from those proved directly” (People v Leyva, 38 NY2d 160, 166), “the danger . . . is that of logical gaps – that is, subjective inferential links based on probabilities of low grade or insufficient degree – which undetected, elevate coincidence and, therefore, suspicion into permissible inference” (People v Cleague, 22 NY2d 363).  In such a cases, reliance on a presumption may lead to a mistaken or demonstrably incorrect result. 

For example, police officers possess deadly weapons, however that possession, without more, is no evidence of any intention to use those weapons unlawfully.  In fact, just the opposite presumption would be more likely: that the officers possess their weapons for the purpose of enforcing, rather than violating, the law.  The legislature recognized specific instances where the facts affirmatively defeat the presumption by enacting exemptions in Penal Law § 265.20; section 265.20(a)(1)(b) relates to police officers.

Penal Law § 10.00(8) defines “possession” as “to have physical possession or otherwise to exercise dominion or control over tangible property.”  Thus, in order for the presumption of possession to be constitutionally applied, the proof at trial must support a rational inference that each occupant of the vehicle was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over it (County Court of Ulster County v Allen, supra, 442 US 140, 152). 

In Ulster County, three men and a sixteen-year-old girl were traveling together from Detroit to New York City.  When the car was stopped for a traffic violation, a trooper noticed a gun sticking out of the girl’s open handbag, which held two guns.  The Supreme Court reasoned that because “the guns were lying on the car’s floor or seat in plain view” it was “rational to infer that each of the respondents was fully aware of the guns’ presence and had both the ability and intent to exercise dominion and control over them.”  The Court found a rational basis permitting invocation of the presumption of possession where codefendants were not casual passengers but well-known to each other, and the weapons were not “out of defendants’ sight” (442 US at 152).

The Court did not reach the issue of the constitutionality of the presumption in cases where a gun was hidden in a car or inaccessible to a defendant.  Rather, the Court refused to find Penal Law § 265.14(3) unconstitutional on its face simply because it could “sweep[] within its compass many occupants who may not know they are riding with a gun (which may be out of their sight), and many who may be aware of the presence of the gun but not permitted to access it,” in the grounds that the defendants lacked standing to challenge the application of the presumption in these hypothetical situations.

In its Ulster County decision, however, the Second Circuit held that in a case involving casual passengers and a gun concealed from defendant’s sight, invocation of the automobile–  possession presumption would unconstitutionally diminish the People’s burden of proof  (Ulster County v Allen, 568 F2d 998). 

Such concerns might be triggered (ha, ha) where there is no independent evidence that the defendant knew that the gun was in the vehicle, or lacked any relationship with the others in the vehicle other than that of “casual passengers,” which could support a finding that they shared a common purpose. Absent any independent supporting evidence, there could be no rational basis to infer that the defendant was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over the gun.  Furthermore, there would be no substantial assurance that the presumed fact of possession is more likely than not to flow from the proven fact upon which it is made to depend – the defendant’s presence in a car where a concealed gun was found.  

Under these circumstances, for a conviction to stand, it must be “clear that the presumption is not the sole and sufficient basis for a finding of guilt” (Ulster County v Allen, 442 US at 165).  Where the prosecution’s entire case for possession is based solely upon the fact that the defendant was present in a car where a concealed handgun was found and the record is devoid of any independent factual basis that could suggest that the defendant knew that a gun was present or had the ability to exercise dominion or control over it, resort to the presumptions of possession or the intention to use unlawfully would be improper.

Recall that we noted in the last post that presumptions may not be invoked where the underlying facts needed to support them are not present (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).  When are the underlying facts insufficient to warrant invoking a presumption?  As you might expect, there’s no black on white rule, so we’ll lay out the considerations below.  

Consider a common fact pattern: police find a loaded handgun under the front seat of a car occupied by the defendant and two others. All three are charged with Criminal Possession of a Weapon in the Second Degree.  As is typically the case, there is no direct proof bearing on defendant’s alleged intent to unlawfully use the weapon found in the vehicle, nor is there any proof regarding defendant’s actual possession or knowledge of the presence of the weapon in the vehicle.  So, the prosecution’s case relies on two presumptions: first, that everyone in the vehicle is presumed to possess the weapon (Penal Law § 265.15[3]) and second, that one who possesses a loaded weapon is presumed to do so with the intent to use it unlawfully against another (Penal Law § 265.15[4]). 

We’ll talk about problems with presumption stacking next time (sort of like multiplying fractions - you wind up with a smaller, not a greater number or burden of proof).  Leave that aside for now while we consider the use of each presumption independently.  What does case law say about the requisite factual basis?  With apologies for citation format, then:

“Presumptions must be carefully scrutinized before they will be allowed to operate against an accused since there is a real and substantial possibility that they will conflict with the overriding, more fundamental presumption of innocence accorded to every defendant” (Leary v United States, 395 US 6).  Absent a “a reasonably high degree of probability that the presumed fact follows from those proved directly” (People v Leyva, 38 NY2d 160, 166), “the danger . . . is that of logical gaps – that is, subjective inferential links based on probabilities of low grade or insufficient degree – which undetected, elevate coincidence and, therefore, suspicion into permissible inference” (People v Cleague, 22 NY2d 363).  In such a cases, reliance on a presumption may lead to a mistaken or demonstrably incorrect result. 

For example, police officers possess deadly weapons, however that possession, without more, is no evidence of any intention to use those weapons unlawfully.  In fact, just the opposite presumption would be more likely: that the officers possess their weapons for the purpose of enforcing, rather than violating, the law.  The legislature recognized specific instances where the facts affirmatively defeat the presumption by enacting exemptions in Penal Law § 265.20; section 265.20(a)(1)(b) relates to police officers.

Penal Law § 10.00(8) defines “possession” as “to have physical possession or otherwise to exercise dominion or control over tangible property.”  Thus, in order for the presumption of possession to be constitutionally applied, the proof at trial must support a rational inference that each occupant of the vehicle was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over it (County Court of Ulster County v Allen, supra, 442 US 140, 152). 

In Ulster County, three men and a sixteen-year-old girl were traveling together from Detroit to New York City.  When the car was stopped for a traffic violation, a trooper noticed a gun sticking out of the girl’s open handbag, which held two guns.  The Supreme Court reasoned that because “the guns were lying on the car’s floor or seat in plain view” it was “rational to infer that each of the respondents was fully aware of the guns’ presence and had both the ability and intent to exercise dominion and control over them.”  The Court found a rational basis permitting invocation of the presumption of possession where codefendants were not casual passengers but well-known to each other, and the weapons were not “out of defendants’ sight” (442 US at 152).

The Court did not reach the issue of the constitutionality of the presumption in cases where a gun was hidden in a car or inaccessible to a defendant.  Rather, the Court refused to find Penal Law § 265.14(3) unconstitutional on its face simply because it could “sweep[] within its compass many occupants who may not know they are riding with a gun (which may be out of their sight), and many who may be aware of the presence of the gun but not permitted to access it,” in the grounds that the defendants lacked standing to challenge the application of the presumption in these hypothetical situations.

In its Ulster County decision, however, the Second Circuit held that in a case involving casual passengers and a gun concealed from defendant’s sight, invocation of the automobile–  possession presumption would unconstitutionally diminish the People’s burden of proof  (Ulster County v Allen, 568 F2d 998). 

Such concerns might be triggered (ha, ha) where there is no independent evidence that the defendant knew that the gun was in the vehicle, or lacked any relationship with the others in the vehicle other than that of “casual passengers,” which could support a finding that they shared a common purpose. Absent any independent supporting evidence, there could be no rational basis to infer that the defendant was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over the gun.  Furthermore, there would be no substantial assurance that the presumed fact of possession is more likely than not to flow from the proven fact upon which it is made to depend – the defendant’s presence in a car where a concealed gun was found.  

Under these circumstances, for a conviction to stand, it must be “clear that the presumption is not the sole and sufficient basis for a finding of guilt” (Ulster County v Allen, 442 US at 165).  Where the prosecution’s entire case for possession is based solely upon the fact that the defendant was present in a car where a concealed handgun was found and the record is devoid of any independent factual basis that could suggest that the defendant knew that a gun was present or had the ability to exercise dominion or control over it, resort to the presumptions of possession or the intention to use unlawfully would be improper.

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.

But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 

The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 

There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 

Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.

As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that

Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation

He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.

Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.

Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.

However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.

Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.

But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 

The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 

There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 

Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.

As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that

Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation

He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.

Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.

Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.

However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.

by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.