A new law has recently gone into effect in New York State which fundamentally changes a basic tenant of New York Criminal Practice. New York was the only state in the United States that still did not allow evidence of a prior identification made by a witness via a photo array to be introduced at trial. The thought by New York criminal lawyers has always been that presentation of a photo array to a jury would suggest that the defendant has been in trouble before – why else would they have a photo of him at the time of the identification procedure. This was deemed to be unfair to the defendant and improper. However, many felt that this concern was outdated, and New York decided to join the vast majority of other states in allowing for the prior photo array to be introduced at trial, but with very strict requirements on how the photo array is compiled and how the identification procedure is conducted. Strict requirements or not, this new allowance will have a wide-reaching and significant impact on criminal prosecutions in New York City, including Manhattan, Brooklyn, the Bronx and Queens, and all the way “upstate” to Rockland County, Westchester County, Putnam County and beyond.
A photo array is one form of identification procedure – a tool used by police and other law enforcement agencies to identify the alleged perpetrator of a crime. A photograph of the suspect is acquired one way or another and put on a single page with photos of other individuals. When compiled appropriately, the other individuals should meet the same general description of the suspect. For example, if a victim of a crime tells the police that the perpetrator was a white male, it would be highly improper for a detective to compile a photo array with only one photo of a white male, and the rest black men and/or women. This would be highly suggestive (and a bit extreme!), would clearly not be admissible at trial, and would likely preclude the victim from even identifying the person at a trial, since they have arguably been tainted by this improper procedure.
Photo arrays, when used in investigations in New York, have always been subject to scrutiny for this reason – because if a photo array was unduly suggestive, the witness would be prevented from identifying the suspect again at a later proceeding. However, there was never a question that the photo array itself would be precluded from the trial. Now, that has all changed. The new law allows the prosecutor, such as the Manhattan District Attorney’s Office, to put the photo array itself into evidence, and present it to a trial jury as confirmation that the witness identified the defendant was the one who committed the crime back on that day that the photo identification procedure was performed. This would be powerful evidence at a trial, especially since such a photo array identification would have been done much closer in time to the incident itself, as opposed to a trial that takes place months or years later.
Up until today, the fact that a witness picked a person out of a photo array has been inadmissible at any trial in New York State. The new law permits the prosecution to submit evidence to a trial jury that the witness picked the defendant out of a photo array. This can be very powerful evidence, because a prosecutor will argue that the fact that the witness selected the defendant out of six photos means that the witness was able to recognize the person who committed the crime.
As mentioned, there are requirements and safeguards that have been put in place that go even beyond the standards for analyzing the propriety of the photo array procedures in the past. These new requirements could incentivize police and prosecutors to conduct these identifications in even more fair ways, for hope of being able to introduce it at a trial. For example, the new law requires that, to be admissible at trial, the photo array must be conducted “blind,” meaning the detective who presents the photo array does not know who the suspect is. This can prevent the conscious, or even unconscious suggestion by a detective to the witness about who the “correct” answer is, or who the actual suspect is. There was no such requirement previously with regard to suppressing the subsequent in-court identification at trial. In addition, before a photo array can be introduced at trial, there must be a formal hearing before a judge to determine whether the various rules and requirements of the new law were complied with. If the rules were not followed, the witness can still identify the defendant at trial, provided that the photo array was not unduly suggestive by the old standards. However, as practitioners become accustom to these new requirements, and see the benefits and increased fairness they might create in the justice system, these new requirements could bleed into our general understanding of what is and what is not “unduly suggestive.”
Crotty Saland PC is a New York criminal defense firm representing clients in New York City and throughout the Hudson Valley from Westchester and Putnam to Putnam, Orange and Dutchess Counties. The New York criminal defense attorneys at Crotty Saland PC served as prosecutors in the Manhattan District Attoreny’s Office.