Sunday, May 28, 2017

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

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 -

Wednesday, May 24, 2017

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


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?