Friday, October 27, 2017

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:   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

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