The People v. Thomas P. Perdue

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 28 The People &c., Respondent, v. Thomas P. Perdue, Appellant.

Carolyn Walther, for appellant. Martin P. McCarthy, for respondent.

SINGAS, J.:

“The importance of identification evidence is, of course, self-evident” (People v

Riley, 70 NY2d 523, 530 [1987]). In every trial, the People bear the burden of proving

beyond a reasonable doubt that the defendant is the person who committed the charged

-1- -2- No. 28

crime. But because identification evidence may bear certain “weaknesses and dangers,”

this Court has implemented “constitutional, statutory[,] and decisional safeguards” to

ensure the reliability of this “most potent evidence” (id. at 530, 531).

On this appeal, we are asked whether a witness was properly allowed to identify

defendant Thomas Perdue as the perpetrator for the first time in court, without having been

subjected to any pretrial identification procedure. We hold that, when the People call a

witness who may make a first-time, in-court identification, they must ensure that the

defendant is aware of that possibility as early as practicable so that the defendant has a

meaningful opportunity to request alternative identification procedures. If the defendant

explicitly requests such procedures, a trial court may exercise its discretion to fashion any

measures necessary to reduce the risk of misidentification. The ultimate determination of

whether to admit a first-time, in-court identification, like any evidence, rests within the

evidentiary gatekeeping discretion of the trial court. The court must balance the probative

value of the identification against the dangers of misidentification and other prejudice to

the defendant.

Here, defendant was aware from pre-trial discovery that the witness might make a

first-time, in-court identification but sought only preclusion of the identification. Because

the witness’s testimony and pretrial statements established the reliability of her first-time,

in-court identification, and the lack of formal notice did not significantly prejudice

defendant, the trial court did not abuse its discretion in denying defendant’s request to

preclude it. We therefore affirm.

-2- -3- No. 28

I.

In 2017, defendant shot the victim in the leg during a house party. A neighbor, the

witness at issue in this case, called 911 to report the shooting. On the call, the witness

described the shooter as a Black, skinny, dark-skinned man, wearing a white baseball cap,

gray pants, and white sneakers. After law enforcement responded to the scene, the witness

told officers that she could identify the shooter if necessary. Her statements to police were

captured on video recorded by an officer’s body camera video, which was provided to

defendant before trial. No pretrial identification procedure was conducted with this

witness.

At trial, the victim testified and identified defendant as the person who shot him.

The witness subsequently testified that, on the night of the shooting, there was a light on

the front porch that illuminated the front of the house where the shooting took place. She

stated that she saw the shooter standing right outside the house, “right there by the grass,

right there by the walkway, in my plain view sight, out of my window.” She further

testified that the shooter was a dark-skinned Black man, approximately six feet tall, with a

mustache and a goatee, and was wearing gray jeans, white sneakers, and a white cap. The

People asked whether the witness “would . . . recognize” the individual if [she] saw [him]

again and the witness answered, “Of course.”

Defendant objected, protesting that the witness did not participate in a pretrial

identification procedure. Defendant asked the court to preclude the witness’s first-time,

in-court identification, arguing that the identification procedure was suggestive because

there was only one person sitting in the court room who could possibly be the suspect. The

-3- -4- No. 28

court ruled that “if [the witness] can ID [defendant] in court, she can ID him in court” and

that defendant could challenge the identification on cross-examination. The witness then

identified defendant as the shooter. She also pointed out the shooter and the victim in

surveillance video. On cross-examination, the witness testified that she had never seen the

shooter before the night of the shooting and that, despite speaking to the police and to the

prosecutor, she was never asked to identify defendant prior to trial. During his closing

argument, defendant vigorously attacked the in-court identification.

The jury convicted defendant of all charges and the Appellate Division affirmed the

judgment (see 203 AD3d 1638 [4th Dept 2022]). A Judge of this Court granted defendant

leave to appeal (see 38 NY3d 1073 [2022]).

II.

This Court has recognized the very real danger of wrongful convictions presented

by mistaken eyewitness identification and has taken steps to protect criminal defendants

from such miscarriages of justice (see People v Boone, 30 NY3d 521 [2017]; People v

Marshall, 26 NY3d 495 [2015]; People v Santiago, 17 NY3d 661, 669 [2011]; see also

Riley, 70 NY2d at 530-531). Most of this Court’s rules “imposing constitutional limits on

identification procedures[ ] involve[ ] suggestiveness originating with law enforcement

officers” (People v Marte, 12 NY3d 583, 586 [2009], citing People v Adams, 53 NY2d

241, 251 [1981]). The concern is that suggestive pretrial identification procedures arranged

by law enforcement will influence and taint the witness’s subsequent in-court identification

of the defendant, resulting in possible misidentification (see Riley, 70 NY2d at 530-531).

To address that concern, this Court has generally precluded in-court identifications made

-4- -5- No. 28

following an unduly suggestive pretrial identification procedure, allowing a witness to

make an in-court identification only if the People can demonstrate an independent source

for the witness’s identification that was not influenced by the suggestive pretrial procedure

(id. at 531-532; Adams, 53 NY2d at 251).1 We have also recognized the possibility that

trial courts might need to take protective procedures when the suggestiveness of a pretrial

procedure does not originate with law enforcement (see Marshall, 26 NY3d at 498; see

also Marte, 12 NY3d at 589-590).

Concerning identifications made at trial, this Court and many others have

recognized the inherent suggestiveness of the traditional in-court identification procedure,

with a single defendant sitting at a table with defense counsel (see e.g. Perry v New

Hampshire, 565 US 228, 244 [2012]; People v White, 73 NY2d 468, 474-475 [1989];

United States v Archibald, 734 F2d 938, 941-942 [2d Cir 1984], mod 756 F2d 223 [2d Cir

1984]; People v James, 100 AD2d 552, 553 [2d Dept 1984]; People v Huggler, 50 AD2d

471, 474 [3d Dept 1976]). As with an unduly suggestive pretrial identification, it will often

be immediately clear to the witness who the accused defendant is, especially if the witness

has a rudimentary knowledge of courtroom seating arrangements. The principal danger is

that, faced with the pressures of testifying at trial, the witness will identify the defendant

as the perpetrator simply because the defendant is sitting in the appropriate spot, and not

1 When considering whether an independent source exists, we have focused on independent indicia of the identification’s reliability (see People v Brisco, 99 NY2d 596, 597 [2003]; People v Williams, 85 NY2d 868, 869 [1995]; see also Neil v Biggers, 409 US 188, 199- 200 [1972]).

-5- -6- No. 28

because the witness recognizes the defendant as the same person that they observed during

the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest

to the witness who should be identified, trial courts must be vigilant to ensure that where a

witness has not previously identified the defendant in a properly conducted pretrial

identification procedure such as a photo array or lineup, the suggestiveness of a first-time,

in-court identification procedure does not create an unreasonable danger of a mistaken

identification.

That defense counsel may cross-examine a witness on the suggestiveness of a first-

time, in-court identification, or make such arguments to the jury, does not render an in-

court identification less suggestive and does not always eliminate the risk that a jury may

credit a tainted identification. We have recognized that “[a]n eyewitness is often utterly

confident about an identification, expressing the identification or recollection of

identification with subjective certainty, and hence entirely unshakable on cross-

examination” (Boone, 30 NY3d at 531). Thus, to counteract the heightened risk of

misidentification in the first-time, in-court identification context, defendants should be

afforded a meaningful opportunity to request additional procedures that would (1)

demonstrate the reliability of a subsequent in-court identification—such as granting an

adjournment for a non-suggestive identification procedure to test the witness’s

identification (see United States v Brown, 699 F2d 585, 593-594 [2d Cir 1983])—or (2)

reduce the suggestiveness of the in-court identification procedure itself (see Archibald, 734

F2d at 941-942). The determination of whether and to what extent such procedures are

necessary “to enhance the truth finding process, and to prevent wrongful convictions”

-6- -7- No. 28

(Marte, 12 NY3d at 586) rests within the sound discretion of the trial court (see People v

Brown, 28 NY3d 392, 409 [2016]).2

Of course, the ability of the defendant to meaningfully request such protective

measures is dependent on the defendant’s awareness that the witness may make a first-

time, in-court identification. Indeed, if a defendant is unaware before the witness testifies

that the witness may make such an identification, the reliability of any subsequent

alternative identification procedure, or any measures to minimize suggestiveness, would

be vitiated by the witness’s opportunity to observe the defendant at the defense table (cf.

Archibald, 756 F2d at 223 [availability of special identification procedures contingent on

a defendant requesting such procedures “in a timely manner prior to trial”]). Accordingly,

when the People may ask a witness to make a first-time, in-court identification, they must

ensure that the defendant is aware of this possibility as early as practicable. We emphasize

that the court’s obligation to take any action regarding a first-time, in-court identification

is dependent upon a timely request made by the defendant, as the defendant may not wish

2 We agree with the dissent that a trial court should consider the witness’s degree of familiarity with the defendant when determining whether such procedures are necessary (see dissenting op at 25-26). We decline, however, to adopt the dissent’s ill-defined stranger/non-stranger dichotomy to determine when a court is permitted to exercise its discretion (see dissenting op at 1-2, 25-26 & n 9; but see 26 [setting forth a “brief encounter” exception to the “stranger” rule]). Moreover, the dissent’s statement that a witness should not be permitted to identify a perpetrator for the first time in court when their identification is “solely based on the memory of a crime” is confusing, as it is either seemingly redundant to the “stranger” rule, or implies that a witness should base their in- court identification on something other than their memory of the crime (see majority op at 1-2, 23, 28; but see 25 n 9 [“The source of the witness’s trial testimony is . . . what they observed during the course of the crime”]). Such a rule finds no support in our law.

-7- -8- No. 28

to seek protective measures that would bolster or draw further attention to the

identification. A rule requiring courts to order that identification procedures be employed

regardless of a defendant’s preference (see dissenting op at 22-23) would hinder defense

attorneys’ ability to choose a strategy in their clients’ best interest and inappropriately

circumvent the trial judge’s role of evaluating the demands of the particular case.

In the absence of the guidance we provide today, the People did not specifically

notify the defendant that the witness might be called to identify him. Nonetheless, the

body-camera footage and the 911 call—together with the People’s witness list, which

included this witness—alerted defendant that the witness would likely make a first-time,

in court identification. Defendant did not request any alternative identification procedures

before the witness testified but sought preclusion of the identification during her testimony.

III.

Trial courts may “exclude relevant evidence if its probative value is outweighed by

the prospect of trial delay, undue prejudice to the opposing party, confusing the issues[,]

or misleading the jury” (People v Primo, 96 NY2d 351, 355 [2001]). The admissibility of

a first-time, in-court identification is therefore vested to the discretion of the trial court.

In exercising this discretion in the context of a first-time, in-court identification, the

court must consider the danger of misidentification from the suggestiveness of a first-time,

in-court identification, and whether there are independent assurances of the identification’s

reliability that outweigh this risk. Such considerations may include: the witness’s

familiarity with the defendant, the quality of the witness’s opportunity to observe the

defendant before the incident in question (see Marshall, 26 NY3d at 509; People v Ramos,

-8- -9- No. 28

42 NY2d 834 [1977]), the witness’s ability to provide accurate descriptive details regarding

the defendant (see Brisco, 99 NY2d at 597), the time between the crime and the testimony,

and whether there is other, reliable trial evidence corroborating the identification (see

People v Allen, 13 NY3d 251, 269 [2009]). In evaluating the danger of misidentification,

the court may also take into account the suggestiveness of the in-court identification

procedure itself.

When a defendant is not given advance notice of the identification, the trial court

may also consider whether there was any reason for the failure to provide notice and the

extent to which it has prejudiced the defendant. In general, to limit the risk that a trial court

will exclude an identification for lack of notice, the People should provide explicit notice

at the earliest possible juncture. Going forward, application of this framework should

render attempts to elicit unnoticed, first-time, in-court identifications uncommon, and the

admission of such identifications even less so. We acknowledge, though, that situations

may arise where the People, through no fault of their own, are not themselves aware of a

witness’s ability or willingness to make an identification during their trial testimony. Trial

courts must assess how to proceed in such scenarios on a case-by-case basis.

During her trial testimony, the witness established her ability to observe the shooting

and view the shooter. She described the shooter in detail, establishing that she had a

sufficient opportunity to view the shooter in order to make a reliable identification. And

her trial testimony, which took place only five months after the shooting, mirrored her

previous description of the shooter on the 911 call. Moreover, the witness’s identification

was far from the only evidence linking defendant to this crime. The victim, who had met

-9- - 10 - No. 28

defendant prior to the shooting, also identified defendant as the shooter and confirmed that

he and defendant appeared on the surveillance video. Indeed, defendant can be seen on the

video not only wearing the precise clothing that the witness had described, but also holding

what is clearly a gun. The police investigator, for his part, testified that defendant was

stopped driving the same vehicle in which the shooter can be seen fleeing the scene.

Though the People were not aware of any duty to provide notice, this does not appear to

have significantly prejudiced the defendant, given that he was provided with the witness’s

unequivocal statements that she could identify the perpetrator. Here, Supreme Court

therefore did not abuse its discretion as a matter of law in denying defendant’s request to

preclude the witness’s first-time, in-court identification.

In any event, any error was clearly harmless (see People v Harris, 80 NY2d 796,

798 [1992]; People v Owens, 74 NY2d 677, 678 [1989]; People v Oliver, 34 NY2d 859,

860 [1974]).

IV.

This Court is unanimous in its resolve to curtail the dangers of first-time, in-court

identifications. Our approach ensures that defendants have notice and an opportunity to be

heard and empowers trial courts to ensure the reliability of such identifications before they

are elicited at trial. Beyond that, trial courts are well equipped to assess the admissibility

of first-time, in-court identifications and exclude those that pose a risk of misidentification

or other undue prejudice.

Defendant’s remaining contention lacks merit.

Accordingly, the order of the Appellate Division should be affirmed.

- 10 - RIVERA, J. (dissenting):

A first-time, in court identification by a person unfamiliar with the defendant is

highly suggestive and can lead to a wrongful conviction. I would adopt a rule requiring the

prosecution to conduct a pre-trial procedure that accords with due process and ensures a

defendant’s right to a fair trial when: 1) identification is at issue; 2) the witness is a stranger

to the defendant; and 3) the witness’s memory of the crime is the only basis for the

identification. Absent such a procedure, an in-court identification should be prohibited.

This rule places the burden of demonstrating the identification’s reliability on the

prosecution—the party that bears the burden of establishing defendant’s guilt beyond a

reasonable doubt, the party that can wield the power of the State to ensure the

administration of a constitutionally-adequate procedure, and the party best positioned to

proffer evidence that the identification is reliable and not a product of unlawfully

suggestive practices or cues. The rule would effectuate the truth-seeking function of the

trial by testing this most unreliable form of testimonial evidence against the accused—

eyewitness identification by a stranger based on observations made under stressful

conditions—before deciding whether the testimony should be presented to the jury. The

rule also incentivizes pre-trial identification procedures consistent with well-established

constitutional mandates and disincentivizes mid-trial requests for untested, inherently

suggestive testimony.

In contrast, the majority’s rule shifts the burden onto the defendant and rewards

State actors for failing to conduct a constitutionally-valid, out-of-court identification before

the witness takes the stand. Worse, the majority’s approach sanctions what is nothing more

than an in-court “show up” identification, without the constitutional protections against

this inherently unreliable practice. Finally, while acknowledging the risks of

misidentification attendant to first-time, in-court identifications, the majority concludes

that admission of the testimony against defendant was harmless. But harmless error

analysis has no place when, as here, defendant is denied a fair trial.

We can and must do better to protect the integrity of the criminal legal system and

to protect defendants by avoiding the risk of convictions of the innocent based on

misidentifications. I dissent.

Defendant Thomas Perdue claims that his due process rights were violated by an

unduly suggestive first-time, in-court identification by a person unfamiliar with him.

Science supports defendant’s claims that this type of identification is inherently unreliable.

A.

Wrongful Convictions Based on Misidentification

Wrongful convictions based on misidentification are a real phenomenon.

“Inaccurate identifications, especially misidentifications by a single eyewitness, play a role

in the vast majority of post-conviction DNA-based exonerations in the United States”

(People v Boone, 30 NY3d 521, 535 [2017]). The National Academy of Sciences has

concluded that “at least one mistaken eyewitness identification was present in almost three-

quarters of DNA exonerations” and another report has put the number around 70% (id.,

citing Identifying the Culprit: Assessing Eyewitness Identification 11 [2014]; Innocence

Project, DNA Exonerations in the United States [2023], available at

https://innocenceproject.org/dna-exonerations-in-the-united-states/ [last accessed Dec. 3,

2023]).

In New York, there are growing numbers of exonerations (see Hurubie Meko, City

to Pay Record $17.5 Million Settlement After Wrongful Conviction, NY Times [Nov. 16,

2023]). In 2022, New York City alone “settled cases involving 16 wrongful convictions,

the most of any single year” (id.) Out of the 354 exonerations in New York State since

1989, 122 involved a mistaken eyewitness identification (Interactive Map: Exonerations

by State, National Registry of Exonerations, Univ of Michigan [Sept. 27, 2023], available

at https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-

States-Map.aspx [last accessed Dec. 3, 2023]). In one particularly egregious example from

2004, Sheldon Thomas was convicted in Kings County of killing a 14-year-old boy and

sentenced to 25 years in prison (Thomas v New York Dept. of Corr., 2017 WL 5891778

[ED NY 2017]). His arrest was based, in part, on an eyewitness who identified him in a

photo array that police assembled using what they believed to be his photo. There was just

one problem: they used the photograph of a different man named Sheldon Thomas. During

pre-trial hearings, a detective admitted that “he had ‘mixed up’ the details of the

photographic array” (id. at *2). Nevertheless, the suppression court concluded the error

was “of no legal consequence” because the other Sheldon Thomas “resembled [the

defendant], had the same name, and police believed in ‘good faith’ that the person in the

photograph was [the defendant]” (id. at *4). Earlier this year, Thomas was exonerated

following an investigation by the Brooklyn District Attorney’s Conviction Review Unit.1

In another salient example, the Manhattan District Attorney moved in 2016 to vacate

the conviction of Clifford Jones after he served 29 years in prison for rape and murder—

making him one of the longest-incarcerated individuals to be wrongfully convicted in New

York State (Longest Incarcerations, National Registry of Exonerations, University of

Michigan, available at https://www.law.umich.edu/special/exoneration/Pages/

longestincarceration.aspx [last accessed Dec. 3, 2023]). “At trial, the only witness who was

able to identify him as the perpetrator of the crime was the rape victim,” who claimed that

she had entered an apartment building with the perpetrator intending to have sex with him,

but after she had second thoughts, the man “put a knife to her throat and raped her” (People

v Jones, 24 NY3d 623, 631 [2014]). The perpetrator then encountered another man in the

stairway, and the rape victim watched as the two “tussl[ed]” and the perpetrator stabbed

the man with the knife (id.). Months later, she identified Jones as the perpetrator in a photo

array and in a subsequent lineup (id.). However, she testified at trial that she was a daily

heroin user and “had taken heroin on the morning of the lineup” (id.). Years after Jones’

convictions were upheld on appeal (91 AD2d 874 [1st Dept 1982]), DNA testing of hair

1 District Attorney’s Offices in the following New York State counties maintain wrongful conviction units whose work has led to several exonerations: Bronx (8 exonerations), Erie (1), Kings (39), Nassau (2), New York (12), Putnam (1), Queens (12), Richmond (1), and Suffolk (3) (see Conviction Integrity Units, National Registry of Exonerations [Nov. 7, 2023], available at https://www.law.umich.edu/special/exoneration/Pages/Conviction- Integrity-Units.aspx [last accessed Dec. 4, 2023]). The following counties also have conviction integrity units: Monroe, Oneida, Orange, Ulster, and Westchester. -5- -6- No. 28

recovered from a baseball cap left at the scene and fingernail scrapings from the murder

victim excluded Jones as the perpetrator (Longest Incarcerations, National Registry of

Exonerations).2

Mistaken identifications are caused, in large part, by the natural distortion of

memory that “occur[s] simply with the passage of time and with repeated recounting of

events” (Joyce W. Lacy & Craig E.L. Stark, The Neuroscience of Memory: Implications

for the Courtroom, 14 Nat Rev Neuroscience 9, 649-658 [2013]). However, our memories

are also easily misled. The “ ‘misinformation effect’ . . . refers to a distortion in an original

memory after being exposed to misleading information,” which “can be as subtle as slight

variations in the wording of a question” or “nonverbal feedback via body language and

facial expressions” by an officer conducting a lineup (id., citing Lynn Garrioch & C.A.

Elizabeth Brimacombe, Lineup Administrators’ Expectations: Their Impact on Eyewitness

Confidence, 25 Law & Hum Behavior 299-315 [2001]). It is therefore no surprise that up

to 80% of misidentification cases involve suggestive police practices (Alexis

2 Other individuals exonerated in New York after decades in prison include Mark Denny (witness had been blindfolded for part of the attack and consistently said she was attacked by three men, but changed the number to four after police made Denny a suspect); Felipe Rodriguez (several witnesses viewed lineup and only one witness, who had been using drugs and alcohol on the night of the crime, selected Rodriguez, who did not fit the witness’s initial description); Valentino Dixon (three witnesses identified Dixon in a photo array, although each of their descriptions were more consistent with a different suspect); and Emmanuelle Cooper (witnesses failed to make an identification in several photo arrays, and one witnesses selected Cooper in a photo array but subsequently did not identify him in a lineup) (see Longest Incarcerations, National Registry of Exonerations, University of Michigan, available at https://www.law.umich.edu/special/exoneration/Pages/ longestincarceration.aspx [last accessed Dec. 3, 2023]). -6- -7- No. 28

Agathocleous, How Eyewitness Misidentification Can Send Innocent People to Prison,

Innocence Project [April 15, 2020], available at https://innocenceproject.org/how-

eyewitness-misidentification-can-send-innocent-people-to-prison/ [last accessed Dec. 1,

Many other “powerful variables [can] affect the reliability of eyewitness

identification evidence,” such as “cross-race identifications, stress during the witnessing of

a crime, quality of view,” etc. (Gary L. Wells, et al., Policy and Procedure

Recommendations for the Collection and Preservation of Eyewitness Identification

Evidence, 44 L & Hum Behavior 1, 3-36 [2020]).3 Cross-racial bias is a “memory

phenomenon” in which the accuracy of an identification is reduced when identifying “faces

of a race or ethnic background different from one’s own” (Lacy & Stark, The Neuroscience

of Memory, 14 Nat Rev Neuroscience 9). Studies have shown that “we use our entire

existing body of knowledge and experiences” in reconstructing memories, and people are

“most familiar” with the “facial features of [their] own race” (id.). We have recognized

this “near consensus in the relevant scientific community” and required in Boone that

where an identifying witness and the defendant “appear to be of different races,” the trial

court must “give, upon request, during final instructions, a jury charge on the cross-race

effect,” instructing the jury to consider that “some people have greater difficulty in

3 Based on recent field studies collecting data from 6,734 lineups, among the witnesses who made an identification, over one third identified an innocent filler (Wells, Policy and Procedure Recommendations, 44 L & Hum Behavior at 5). -7- -8- No. 28

accurately identifying members of a different race” and to consider whether the racial

difference may have affected the identification at issue (30 NY3d at 535).

Despite these thoroughly studied problems with witness memory, juries are unaware

of the research and tend to have “nearly religious faith in the accuracy of eyewitness

accounts” (Jules Epstein, The Great Engine That Couldn’t: Science, Mistaken

Identifications, and the Limits of Cross-Examination, 36 Stetson L Rev 727, 772 [Spring

2007], quoting Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and

Criminal [3d ed 1997]). As Justice Brennan recognized, “there is almost nothing more

convincing than a live human being who takes the stand, points a finger at the defendant,

and says ‘That’s the one!’” (Watkins v Sowders, 449 US 341, 352 [1981] [Brennan, J.,

dissenting], quoting Loftus & Doyle, Eyewitness Testimony at 19). Juries tend to trust a

witness even more when the witness expresses confidence, yet research has “shown weak

or even negative correlations between a person’s confidence in the accuracy of a memory

and the actual accuracy of that memory” (Lacy & Stark, The Neuroscience of Memory, 14

Nat Rev Neuroscience 9). In other words, “[a]ccuracy often produces confidence, but

confidence does not necessarily indicate accuracy” (id.). This is the case even when the

witness is the victim (Epstein, The Great Engine That Couldn’t, 36 Stetson L Rev at 731,

745-746 [“studies have mirrored the experience of victimization, most significantly in the

area of stress” and have concluded that high-stress situations produce lower accurate

identification rates than low-stress situations”]; see also early scholar Edwin M. Borchard,

Convicting the Innocent, 367 [1932] [jurors are predisposed “to credit the veracity and

reliability of the victims of an outrage (more) than any amount of contrary evidence” but

“the emotional balance” of the victim may be disturbed by the experience and their

perception “distorted”]). Compounding the problem, witnesses tend to grow more

confident over time. One study found that out of 190 DNA exonerations involving a

misidentification, 40% involved a witness who did not initially identify the innocent

suspect but by the time of trial were completely certain of their identification (Brandon L.

Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 68 [2011]).

The Court has repeatedly acknowledged the danger to defendants presented by

mistaken eyewitnesses (see e.g. People v Marshall, 26 NY3d 495, 502 [2015], citing

United States v Wade, 388 US 218, 288 [1967]; People v Santiago, 17 NY3d 661, 669

[2011]; People v Riley, 70 NY2d 523, 531 [1987]; People v Caserta, 19 NY2d 18, 21

[1966]). To assist the jury with evaluating and weighing this testimony, the Court has said

that “courts are encouraged” to grant “expert testimony on the subject of eyewitness

recognition memory [to] educate a jury concerning the circumstances in which an

eyewitness is more likely to make such mistakes” (Santiago, 17 NY3d at 669 [hearing court

abused its discretion by denying expert testimony where “the case turned on the accuracy

of a single eyewitness identification and there was no corroborating evidence connecting

the defendant to the crime”], citing People v Drake (7 NY3d 28, 31 [2006]; see also People

v LeGrand (8 NY3d 449 [2007]; People v Abney (13 NY3d 251 [2009]). “It is for the trial

court in the first instance to determine when jurors are able to draw conclusions from the

evidence based on their day-to-day experience, their common observation and their

knowledge, and when they would be benefited by the specialized knowledge of an expert

witness” (People v Lee, 96 NY2d 157, 162 [2001], citing People v Cronin, 60 NY2d 430,

433 [1983]). But while jurors “may be familiar from their own experience with factors

relevant to the reliability of eyewitness observation and identification, it cannot be said that

psychological studies regarding the accuracy of an identification are within the ken of the

typical juror” (id.).

Despite our statements extolling the potential value of such expert testimony,

courts—like some lawyers—often do not fully appreciate how expert testimony may assist

the jury. The testimony is considered unnecessary because the factors that impact on the

reliability of an identification are believed to be “within the ken of the typical juror” (id.),

even when the science shows otherwise. Not only are jurors unaware of the most significant

factors that negatively impact on witness memory and thus the accuracy of an

identification, but some jurors may consider negative factors as actually weighing in favor

of the reliability of the identification. For example, jurors may mistakenly believe that the

presence of a weapon causes the witness to pay more attention and observe the perpetrator

more carefully, but according to scientific research “eyewitnesses observing a crime in

which a perpetrator carries a weapon are less accurate in describing or identifying the

suspect in a lineup compared to crimes with no weapons involved,” likely due to the “stress

and arousal” caused by “the perceived threat induced by a weapon” (Kerstin Kocab &

Siegfried L. Sporer, The Weapon Focus Effect for Person Identifications and Descriptions:

A Meta-Analysis, Advances in Psych & L 71-117 [June 2016] [emphasis added]). Without

- 10 - - 11 - No. 28

knowledge of this phenomenon, jurors may mistakenly “believe that the presence of a

weapon increases attention overall and enhances eyewitness reliability” (Epstein, The

Great Engine That Couldn’t, 36 Stetson L Rev at 777).

B.

Human Impact of Wrongful Convictions

It takes years to overturn a wrongful conviction, and during those years the innocent

remain locked away in prison while the actual perpetrators remain unidentified. According

to one report, out of 375 documented DNA exonerations, the average exoneree spent 14

years in prison, and 10% spent 25 years or more behind bars (Research Resources,

Innocence Project [2023], available at https://innocenceproject.org/research-resources/

[last accessed Dec. 3, 2023]). As we have recognized, the effect is corrosive: “[w]rongful

convictions based on mistaken eyewitness identifications pose a serious danger to

defendants and the integrity of our justice system” (Marshall, 26 NY3d at 502). Every

exoneration reminds the public that the system failed. And the longer it takes to correct a

miscarriage of justice, the greater the public’s disillusionment with our professed

commitment to justice (see Jordan Nowotny et al., Understanding Public Views of

Wrongful Conviction Frequency and Government Responsibility for Compensation:

Results From a National Sample, 34 Crim Just Pol Rev 2, 155 [2022] [in a national sample,

most participants believed that “wrongful convictions are relatively common” and there

was “near unanimous support for government compensation” to wrongfully convicted

individuals]; Robert J. Norris & Kevin J. Mullinix, Framing Innocence: An Experimental

- 11 - - 12 - No. 28

Test of the Effects of Wrongful Convictions on Public Opinion, 16 J Experimental Crim 2,

311-332 [2020] [the “presentation of factual numbers of exonerations reduces support for

capital punishment and erodes trust in the justice system” but does not increase support for

police reforms or personal concern about wrongful convictions, while narratives about

individual wrongful convictions “ha(ve) more pronounced effects on death penalty

attitudes” and “increase( ) personal concern and support for police reform”]).

Wrongful convictions also destroy the lives of the innocent and their families. The

human toll is unquantifiable; years taken can never be recovered. Mark Denny, who was

exonerated in 2017, spent nearly 30 years in prison for a rape and robbery in Brooklyn after

he was misidentified by the rape victim (Michelle Kim, Man Freed in Wrongful Rape,

Robbery Conviction of 1987 Burger King Case, NBC 4 New York, available at

https://www.nbcnewyork.com/news/local/prisoner-exoneration-wrongful-conviction-

burger-king-rape-robbery-brooklyn/378461/ [last accessed Dec. 3, 2023]). Denny, who

wanted to be a police officer when he was a child, said his decades in prison were

“torturous” and he contemplated suicide (id.). His family suffered greatly too. Denny’s

mother “lost her house in Brooklyn while trying to finance lawyers to get him out of prison”

(id.). According to Denny, his mother’s homelessness “destroyed” him (id.). District

Attorney Eric Gonzalez recognized that the terrible error in this case “happened because

little was known back then about memory retention and retrieval, and their effect on

eyewitness identification” (id.). The District Attorney sought assistance from an expert on

eyewitness identifications who opined that the victim’s limited chance to see her attackers,

- 12 - - 13 - No. 28

the extreme stress of the rape, and the long delay between the attack and the identifications

“could have contributed to false identification” (id.).

Research also shows that, although “public opinion surveys have found people to

be generally supportive of wrongfully convicted persons,” individuals still report being

stigmatized in their communities (Kimberley A. Clow & Amy-May Leach, After

Innocence: Perceptions of Individuals Who Have Been Wrongfully Convicted, 20 Legal &

Crim Psych 147, 148 [2015]). Members of their community may not know or may not

believe that they were wrongfully convicted or, even if they are aware of the person’s

innocence, may believe that the person was “associating with criminals while incarcerated”

or is really a “prior criminal[]” despite being wrongfully convicted of one crime (id. at 148-

149). And, of course, someone who has “lost years in prison” may have “difficulties in

attaining housing and employment post-incarceration” and may face the “contemptuous

prejudice” associated with being “low in status” (id. at 149-150).

First-Time, In-Court Identifications

Inherent Suggestiveness

First-time, in-court identifications are inherently suggestive. As the United States

Supreme Court has recognized, “[m]ost eyewitness identifications involve some element

- 13 - - 14 - No. 28

of suggestion” but “all in-court identifications do” (Perry v New Hampshire, 565 US 228,

244 [2012] [emphasis added]). The majority posits that the inherent suggestiveness of an

in-court identification lies in the fact that the defendant is seated at the defense table, and

“the traditional courtroom seating arrangement may itself suggest to the witness who

should be identified” as the perpetrator of the crime (majority op at 6). Other courts have

recognized the same (see United States v Archibald, 734 F2d 938, 941 [2d Cir 1984]

[noting that “[a]ny witness, especially one who has watched trials on television, can

determine which of the individuals in the courtroom is the defendant, which is the defense

lawyer, and which is the prosecutor]; United States v Morgan, 248 F Supp 3d 208, 213 [D

DC 2017] [endorsing Archibald’s rationale and recognizing that in the case at bar there

would “be no doubt that the African-American man seated at counsel table is being

prosecuted for crimes”]).

But that is not the only basis for the heightened suggestiveness of first-time in-court

identifications. Courts and legal scholars have identified the witness’s observation of and

participation in the proceeding itself as adding to the suggestiveness. The witness knows

that the State has investigated the crime and concluded that the defendant is guilty beyond

a reasonable doubt, pressuring the witness to confirm the correctness of the State’s

prosecution (see State v Dickson, 322 Conn 410, 439-440, 141 A3d 810, 832 [2016] [noting

that, “when the state places the witness under the glare of scrutiny in the courtroom and

informs the witness of the identity of the person who has been charged with committing

the crime, it is far less likely that the witness will be hesitant or uncertain when asked if

- 14 - - 15 - No. 28

that person is the perpetrator”]).4 This “social environment . . . produces an immensely

strong commitment effect” (Brief of Amici, Garner v Colorado, 2019 WL 3854682 at *14

[2019]). The witness “may feel that failing to identify the defendant ‘will make [the

witness] appear incompetent, unreliable, or unhelpful to law enforcement’” (id.).

Additionally, the effect of implicit bias undoubtedly exacerbates the inherent

suggestiveness of in-court, cross-racial identifications (see Report, Equal Justice in the

New York State Courts: 2022 Year in Review, New York State Unified Court System

[2022] available at www.nycourts.gov/LegacyPDFS/publications/22-Equal-Justice-

Review.pdf [last accessed Dec. 9, 2023]; Sonia Moghe, Report Reveals ‘Long-Simmering

Racial Tensions’ in New York State Courts, CNN [Oct. 16, 2020], available at

https://www.cnn.com/2020/10/16/us/new-york-state-courts-racial-tensions/index.html

[last accessed Dec. 9, 2023] [discussing Jeh Johnson’s 2020 Special Adviser Report on

Equal Justice, which uncovered systemic bias in the State court system and recommended

mandatory bias training for judges and non-judicial staff]). And bias pervades the system.

People of color are more likely to be prosecuted than White people, both because their

communities are disproportionately policed and because ingrained racial bias may impact

charging decisions leading to higher prosecution rates for Black individuals (see Report,

4 That is why an officer conducting a pre-trial identification procedure is discouraged from informing the witness that a suspect is already in custody. “Courts around the country recognize the inherent danger of an identification procedure in which the witness is aware of whom police officers have targeted as a suspect” (Aliza B. Kaplan & Janis C. Puracal, Who Could it Be Now? Challenging the Reliability of First Time In-Court Identifications After State v. Henderson and State v. Lawson, 105 J Crim L & Criminology 4, 983 [2015]). - 15 - - 16 - No. 28

Tracking Enforcement Trends in New York City: 2003-2018, Data Collaborative for

Justice [Sept. 2020]; Report, Race and Prosecution in Manhattan, Vera Institute of Justice

[July 2014]; Alan Feuer, Black New Yorkers Are Twice as Likely to Be Stopped by the

Police, Data Shows, NY Times [Oct. 10, 2021], available at

https://www.nytimes.com/2020/09/23/nyregion/nypd-arrests-race.html [last accessed Dec.

9, 2023]; Timothy Williams, Black People Are Charged at a Higher Rate Than Whites.

What if Prosecutors Didn’t Know Their Race?, NY Times [June 12, 2019], available at

https://www.nytimes.com/2019/06/12/us/prosecutor-race-blind-charging.html [last

accessed Dec. 8, 2023]). Black individuals are also more likely to be wrongfully convicted.

While less than 14% of the American population is Black, Black defendants account for

over half of all exonerations and are seven times more likely to be wrongfully convicted of

murder than White defendants (Race and Wrongful Convictions in the United States 2022,

National Registry of Exonerations [Sept. 2022]). In the context of a first-time, in-court

identification, some element of suggestiveness inheres when the defendant’s race or

ethnicity matches the race or ethnicity that the witness has used to describe the perpetrator.

Unsurprisingly, that suggestiveness is heightened when the defendant is the only person of

color in the courtroom—or one of very few.

Courts have also recognized that asking a witness for the first time on the stand

whether the person they observed commit a crime is present in the courtroom, and if so to

identify them, is essentially a single-person, show-up identification without the

constitutional guardrails imposed on pre-trial photo arrays and line-ups (see e.g. State v

- 16 - - 17 - No. 28

Watson, 254 NJ 558, 579 [2023] [“Showups can serve a valuable purpose if conducted

within hours of a crime,” but an “in-court identification is essentially a live, single-person

line-up . . . comparable to a showup but [] conducted well after the crime has taken place”]).

An in-court identification may be more suggestive than a show-up because “within hours

of a crime, the eyewitness . . . is unlikely to know how confident the police are in their

suspicion (of the individual)” but “in the court room, the eyewitness knows that the

defendant has been charged” (Commonwealth v Crayton, 470 Mass 228, 237, 21 NE3d

157, 166 [2014]). As these courts have concluded, there is no logical basis for treating pre-

trial identifications with greater caution than in court identifications when the latter is so

highly suggestive (see Dickson, 322 Conn at 423-424 [“(W)e are hard-pressed to imagine

how there could be a more suggestive identification procedure than placing a witness on

the stand in open court, confronting the witness with the person who the state has accused

of committing the crime, and then asking the witness if he can identify the person who

committed the crime”]). Indeed, treating in court identifications differently discourages the

use of pretrial identification procedures, thereby creating a path for the State to avoid the

constitutional mandates, internal rules, and best practices developed over time to minimize

the suggestiveness of those procedures (see e.g. People v Hawkins, 55 NY2d 474 [1982]

[once the right to counsel has attached, defense counsel must receive notice of any lineup

and is entitled to attend]; People v Chipp, 75 NY2d 327, 336 [1990] [a photo array should

show other individuals sufficiently similar in appearance to the suspect such that the

suspect is unlikely to be “singled out for identification based on particular characteristics”];

- 17 - - 18 - No. 28

see also New York State Lineup Procedure Guidelines, New York State District Attorneys

Association Best Practices Committee [Nov 2010]).5

As with unduly suggestive out-of-court procedures, reliance on first-time, in-court

identifications violates a defendant’s due process rights and “adversely impact[s] the truth-

finding process” (see Marshall, 26 NY3d at 503). It is thus incumbent upon the judiciary

to develop and enforce rules that incentivize the use of constitutionally-sound pre-trial

practices and State officials to heed those commands in order to reduce the risk of

misidentification-based wrongful convictions.

The Majority Rule Falls Short

1. Presumption of Suggestiveness and the Prosecution’s Burden The majority elides the reality that wrongful convictions occur in New York,

referring in the abstract to the “danger of wrongful convictions presented by mistaken

identification[s]” and alluding by citation to the steps the Court has taken to protect

defendants “from such miscarriages of justice” (majority op at 4, citing Boone, 30 NY3d

at 521; Marshall, 26 NY3d at 495; Santiago, 17 NY3d at 669 [2011]; Riley, 70 NY2d at

5 The Lineup Procedure Guidelines instruct administrators to, among many other things: refrain from informing the witness if an arrest has been made; use at least five “fillers” who are unknown to the witness and similar to the suspect in appearance; allow the suspect to choose their own position in the lineup and, if a photo array was previously conducted, to avoid having the suspect in the same numerical position they appeared in the array; give all instructions before the procedure begins and refrain from making any further comments until the procedure is finished; document every aspect of the procedure, including the exact words of the witness; and honor any reasonable requests from defense counsel. - 18 - - 19 - No. 28

530-531). On that foundation, the majority adopts an inadequate notice rule that burdens

the defendant with mitigating the errors of the prosecution and the police.

The majority first fails to adopt a clear standard for the provision of notice in

accordance with general due process principles (Sessions v Dimaya, 584 US—, 138 S Ct

1204, 1225 [2018] [Gorsuch, J., concurring] [“Perhaps the most basic of due process

customary protections is the demand of fair notice”], citing Connally v General Constr.

Co., 269 US 385, 391 [1926]; Note, Textualism as Fair Notice, 123 Harvard L Rev 542,

543 [2009] [“From the inception of Western culture, fair notice has been recognized as an

essential element of the rule of law”]). According to the majority, the prosecution need

only “ensure that the defendant is aware of th[e] possibility” “that the witness may make a

first-time, in-court identification” (majority op at 7). But to avoid mistaken assumptions

about a defendant’s awareness and appellate challenges on the issue, the prosecutor should

directly inform the defendant of this potential identification. Why hide the ball? Why rely

on some version of constructive notice and the attendant judicial interpretation of what is

adequate under the circumstances? We should be particularly suspect of anything less than

clear, express on-the-record notice, given that the defendant’s liberty is at stake.6 And if

the prosecutor did not know for certain until trial that they would ask for an in-court

6 Express record notice can be written or oral, depending on the circumstances of the particular case. - 19 - - 20 - No. 28

identification, that would not preclude the prosecutor from notifying defendant, as the

majority says, of that “possibility” (majority op at 7).

The majority next goes astray by imposing on defendants in the first instance the

burden to contest the propriety of the in-court identification, even though it is the State’s

pre-trial inaction that has led it to request an inherently suggestive identification during

trial. Under the majority’s rule, once a defendant is made aware that the prosecution intends

to call a witness who might make a first-time identification at trial, it is up to the defendant

to persuade the trial court that an alternative procedure is necessary to avoid the inherent

suggestiveness of the in-court identification (see majority op at 7-8). But science supports

a presumption that the in-court identification is inadmissible unless preceded by a court-

approved, nonsuggestive pre-testimony procedure. Those procedures can be conducted

when practicable before the testimony, for example, by a photo array or lineup that is not

unduly suggestive. The majority’s rule not only burdens the party who did not create the

problem in the first place, but also fails to encourage prosecutors to conduct pre-testimony

identification procedures in a manner that avoids the heightened suggestiveness of in court

identifications, even when they could do so easily.

In addition to misallocating the burden onto the defendant, the majority’s rule allows

for violations of defendants’ rights to due process and a fair trial. The majority vests trial

courts with discretion to determine whether to order a nonsuggestive identification

procedure (majority op at 6-7). But a first-time, in-court identification is simply a “show-

up,” and the law should regard it as such. Put another way, just as an identification based

- 20 - - 21 - No. 28

on a suggestive pre-trial procedure should not be admitted at trial, neither should a court

discretionarily admit an identification made under the more suggestive conditions of the

courtroom. The latter scenario is the epitome of unfairness.7

2. Cross Examination Does Not Mitigate In-Court Suggestiveness The majority implies that its rule benefits the defendant because it allows the

defense to strategically choose the in-court identification, subject to cross-examination,

over a pre-testimony procedure (majority op at 8). The majority thus concludes that defense

counsel’s opportunity to cross-examine a witness on the reliability of their in-court

identification provides an opportunity to mitigate its suggestiveness. But “the reliance of

courts on the power of cross-examination” in this context “has no support in the literature”

(Epstein, The Great Engine That Couldn’t, 36 Stetson L Rev at 727, 774). Cross-

examination is a poor means to mitigate suggestiveness when the witness testifies truthfully

about what they sincerely believe they observed. Put another way, cross-examination may

be an effective tool to ferret out the liars but it is a woefully ineffective device for probing

7 The majority asserts that its rule “should render attempts to elicit unnoticed, first-time, in-court identifications uncommon, and the admission of such identifications even less so” but then makes obvious to the reader that admission is not error (majority op at 9). The majority fails to explain why the prosecution’s uncertainty about the witness’s identification should preclude a pre-testimony procedure. If we really want to decrease the risk of wrongful convictions based on misidentifications, then these in-court identifications by strangers, under the circumstances I have discussed, should be tested before the witness takes the stand. Even if the majority is correct that under its rule these types of identifications will be “uncommon,” the majority rule still permits some number of defendants to be prosecuted under circumstances that all members of this Court agree are highly suggestive. The rule thus violates established notions of due process and fairness. - 21 - - 22 - No. 28

a witness who genuinely believes in the truth of their testimony and the accuracy of their

identification (id. at 766).

Studies show that defense counsel “start[s] at a disadvantage” due to jurors’

tendency to believe eyewitness accounts (id. at 772, quoting Elizabeth F. Loftus & James

M. Doyle, Eyewitness Testimony: Civil and Criminal [3d ed 1997]). A witness testifying

sincerely but inaccurately “will not display the demeanor of [a] dishonest or biased

witness” (id.). Further, “[t]he likelihood that a committed eyewitness will recant [their]

position (or fall apart on the stand) is so minimal that it is hardly worth considering” (id. at

771, quoting Brian L. Cutler, Eyewitness Testimony: Challenging Your Opponent's

Witness, at 97 [Natl Inst Trial Advocacy 2002]). There are no Perry Mason moments. As

a result, seasoned practitioners warn new attorneys to “have minimal expectations for

cross-examination in eyewitness-identification cases” and not to expect a “knock-out

punch” (id. at 772, citing Loftus & Doyle, Eyewitness Testimony). Instead, they should

simply aim “to hold the risks to an absolute minimum” (id.).8 These practitioner guides and

instructions illustrate the inadequacy of cross-examination as a means to mitigate the

suggestiveness of an in-court identification.

The majority concedes that cross-examination and counsel’s arguments to the jury

“do[ ] not render an in-court identification less suggestive and do[ ] not always eliminate

8 Epstein agrees that cross-examiners of eyewitnesses face a steep uphill battle, but suggests that a “skilled cross-examiner can always make some headway with an eyewitness” if they can “establish inconsistencies or a reduced opportunity to observe” (Epstein, The Great Engine That Couldn’t, 36 Stetson L Rev at 781). - 22 - - 23 - No. 28

the risk that a jury may credit a tainted identification” (majority op at 6). Nonetheless, the

majority claims that counsel may rely on cross-examination as part of its defense strategy

(id. at 6, 8). That “choice” is no choice at all because no amount of cross-examination can

undo the damage wrought by the jury’s exposure to a highly suggestive and unreliable

method of identification that both the law and experts have told us increases the risk of a

misidentification and a possible wrongful conviction (see section II.A, supra). A defense

attorney’s strategy to avoid the pre-testimony identification is of course understandable,

but the research demonstrates it is a strategy based on assumptions and traditions ill-suited

to the specific task of undermining a mistaken but confident witness (see Loftus & Doyle,

Eyewitness Testimony: Civil and Criminal; Cutler, Eyewitness Testimony: Challenging

Your Opponent’s Witness at 97) That strategy is akin to throwing a drowning person a

lifesaver attached to an anchor.

Perversely, the majority’s rule advantages the State, rewarding its failure to conduct

a pre-trial or pre-testimony procedure. The real choice should be between a mandatory pre-

testimony nonsuggestive procedure or exclusion of the identification testimony. Requiring

the prosecution to subject the witness to a constitutionally-adequate procedure mid-trial

does not impair the defendant’s rights because the defendant could not have prevented such

a procedure before trial. And if an out-of-court procedure is conducted mid-trial, the right

to counsel has attached and defense counsel is entitled to be present (see Hawkins, 55 NY2d

474). In other words, neither party is worse off under a rule requiring a pre-testimony

procedure as a condition to admission of the in-court identification than if the State had

initially conducted the procedure before trial and provided CPL 710.30 notice to the

- 23 - - 24 - No. 28

defense. And if the witness cannot identify the defendant before trial, they should not be

allowed a second opportunity, in the crucible of a suggestive courtroom setting, to identify

C.

One simple way to reduce the chance that someone will go to jail for a crime they

did not commit is to prohibit highly suggestive first-time, in court identifications by a

witness unfamiliar with a defendant like the identification at issue in this appeal. First-time,

in-court identifications create the “ultimate ‘targeted suspect’ situation that courts have

repeatedly condemned in the pretrial context” (Aliza B. Kaplan & Janis C. Puracal, Who

Could it Be Now? Challenging the Reliability of First Time In-Court Identifications After

State v. Henderson and State v. Lawson, 105 J Crim L & Criminology 4, 984 [2015]). The

“expectancy effect,” which psychologists use to refer to the unconscious influence that

lineup administrators may have on a witness, may be mitigated by “double-blind”

procedures in which the administrator is not an investigator of that particular case “and

does not know who the suspect is” (id. at 984-985). But “there is no chance” for such a

procedure in a first-time, in-court identification (id. at 985). Everyone in the courtroom is

“aware that the suspect is the individual seated at the defense table.” (id.). There is simply

- 24 - - 25 - No. 28

no way to insulate the witness from this powerful influence except to prohibit first-time,

in-court identifications.

Fundamental fairness and due process requires that, when there has been no pre-

trial identification, the prosecution must move for permission to elicit a first-time in-court

dentification. Unlike the majority’s rule, my rule provides the court and defendant with

clear notice of the prosecution’s intent, leaving no doubt or appellate issue as to defendant’s

awareness of the possibility of a first-time, in-court identification (see majority op at 7-8).

Where either identification is not at issue in the case, the witness is familiar with the

defendant prior to the crime, or the identification is not based solely on the witness’s

memory of observing the crime, the court may grant the motion.9 In all other cases, the

court should order a pre-testimony identification procedure, after considering alternatives

recommended by the prosecution and defendant. Where no such procedure is conducted,

the motion must be denied.

9 The majority asserts that there is some vagueness in the rule that I here describe as most aligned with our law and best designed to protect the defendant’s rights (majority op at 7 n 2). But there is nothing vague in a rule that distinguishes between witnesses who are strangers to the defendant and those who know a defendant well enough to reliably identify them. The potential unreliability of an identification by a person who observed the perpetrator for the first time at the moment of the crime, compared to the certainty of an identification by, for example, the spouse of the perpetrator is plain. Under my rule, and that of other jurisdictions, a witness who does not know the defendant can be asked to identify the defendant in court once the reliability of that identification has been previously tested and has resulted in a positive identification of the defendant. The source of the witness’s trial testimony is not what they viewed during the prior identification, but rather on what they observed during the course of the crime. That rule flows logically from our case law on wrongful convictions and out-of-court identifications, while according with a defendant’s rights to due process and a fair trial (see sections I.A, II.A, supra). - 25 - - 26 - No. 28

For example, if a witness claims they saw the perpetrator of the crime and can

identify them if they saw them again, but the witness is a stranger to the defendant, then a

nonsuggestive pre-trial identification is required. In contrast, if the witness knows the

defendant—as in the case of a relative, friend, or someone who has observed them over

some period of time, in circumstances unrelated to the crime—then they can be asked for

the first time in court if they can identify the person they saw commit the crime (see People

v Dixon, 85 NY2d 218, 223-224 [1995] [explaining that a Wade hearing is not required

where a witness “is familiar with the perpetrator because that witness will naturally be

‘impervious to police suggestion’ ”], citing People v Rodriguez, 79 NY2d 445, 450 [1992]

[a “confirmatory identification” is “tantamount to a conclusion that, as a matter of law, the

witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion

could lead to a misidentification”]). However, familiarity from a prior “brief encounter” is

insufficient exposure to a suspect and not much more reliable than a stranger’s

identification (Rodriguez, 79 NY2d at 450).

Several sister jurisdictions have adopted rules that protect against these first-time

in-court identifications. In Crayton, the Supreme Judicial Court of Massachusetts held that

“[w]here an eyewitness has not participated before trial in an identification procedure, [the

court] shall treat the in-court identification as an in-court showup, and shall admit it in

evidence only where there is ‘good reason’ for its admission” (470 Mass at 241, 21 NE3d

at 169). Good reason may exist, for example, “where the eyewitness was familiar with the

defendant before the commission of the crime” or “where the witness is an arresting officer

who was also an eyewitness to the commission of the crime, and the identification merely

- 26 - - 27 - No. 28

confirms that the defendant is the person who was arrested” (id., 470 Mass at 242, 21 NE3d

at 170). The Court made clear that it would not “place[] the burden on the defendant to

. . . propos[e] alternative, less suggestive identification procedures” because doing so

would suggest that the prosecution “is entitled to an unnecessarily suggestive in-court

identification unless the defendant proposes [an] alternative that the trial judge in [their]

discretion adopts” (id., 470 Mass at 241, 21 NE3d at 169). Instead, the prosecution must

move in limine to proceed with an in-court identification where there has been no out-of-

court procedure (id., 470 Mass at 243, 21 NE2d at 170-171).

Two years after Crayton, the Supreme Court of Connecticut went a step further in

Dickson, holding that a prosecutor must seek advance permission from the trial court before

presenting a first-time in-court identification, and the court may grant that permission only

if “there is no factual dispute as to the identity of the perpetrator, or the ability of the

particular eyewitness to identify the defendant is not at issue” (322 Conn at 446, 141 A3d

at 835-836). Most recently, the Supreme Court of New Jersey followed Crayton’s

approach, holding in Watson that a first-time in-court identification can be conducted only

when there is “good reason” for it (254 NJ at 568, 298 A3d at 1055). Procedurally, the

prosecution “must give fair notice to the defense” before attempting to elicit such an

identification and must file a motion in limine to establish “good reason” (id., 253 NJ at

568, 588, 298 A3d at 1055, 1066). The Watson Court noted that it “does not make sense”

to require the defendant to file a motion to suppress in these circumstances because “only

the prosecution knows whether it will ask a witness to make an identification in court” (id.,

254 NJ at 588, 298 A3d at 1066).

- 27 - - 28 - No. 28

The “good reason” requirement recognized by these courts ensures that the in-court

identification is merely confirmatory or is reliable because it is not solely based on the

memory of the crime but on some additional source of familiarity with the defendant

(Crayton, 470 Mass at 241, 21 NE3d at 169; Watson, 253 NJ at 568, 588, 298 A3d at 1066).

As with the approach adopted by our sister jurisdictions, my rule similarly protects

defendant’s rights and furthers the truth-seeking function of the trial.

This appeal perfectly illustrates why we must prohibit first-time, in-court

identifications. Defendant’s trial features the State’s pre-testimony failures and the

suggestiveness factors that researchers and legal scholars have roundly identified as leading

to unreliable identifications.

According to the trial testimony, victim CC attended a small house party with two

female friends and two other individuals. CC did not know defendant prior to seeing him

for the first time earlier that evening. CC consumed approximately two pints of liquor and

at some point, left with his two friends to buy more alcohol. When they returned, one of

the women nicknamed “Nita” told him to stay outside. CC wanted to retrieve some personal

belongings from the house, so he started “banging on the door.” Nita opened the door but

blocked the entrance, and an argument and “pushing match” ensued. CC spilled some of

- 28 - - 29 - No. 28

his liquor and in frustration, poured the rest of the bottle on Nita. Eventually, CC retrieved

his belongings and walked outside, continuing to verbally argue with Nita and one of the

other men present. Another man walked outside and shot CC in the leg with a revolver. CC

crawled to his car and put a tourniquet on his leg. His friends then drove him to the hospital,

where he underwent surgery. Hospital records indicated that CC initially told doctors that

he “threw a drink on a girl and she shot him in the leg.” He testified that he did not recall

making that statement. He also identified defendant as the person who shot him.

Police recovered surveillance footage from a nearby building which the prosecution

played for the jury. The video does not depict the shooting but shows CC crawl across the

street to his vehicle with two other individuals who then drive him away. The video also

shows a black male wearing a white cap enter the video frame and look towards CC before

entering a silver Chevy Equinox and driving away.

The morning after the incident, a police officer spoke with CC at the hospital. CC

indicated he did not see who shot him and declined to give any further statement at that

time. Several days later, CC told an investigator that the shooter was a “black male in his

twenties” who went by the nickname “Killa.” The investigator searched the name “Killa”

in a police database which yielded defendant’s name among several others. He then

searched defendant’s name in another database, which showed defendant being stopped in

“several vehicles registered to the same female,” one of which was the same make and

color as the one in the crime scene surveillance footage. Police records contained a phone

number for defendant which was linked to a Facebook page with the name “Killasquad.”

- 29 - - 30 - No. 28

Thereafter, police stopped and arrested defendant in a silver Chevy Equinox with a license

plate matching the number listed in the database.

The prosecution then called SH, who testified that she lived in the apartment above

the house party and was woken up by the sound of an argument between a male and a

female. She went to look through her bedroom window, from where she could see the stairs

descending from the porch below but could not see the porch itself. The area was

illuminated by floodlights. SH stated that she saw a “black male” who was “almost six feet

tall,” “dark-skinned,” with “a mustache, goatee, [and] white cap,” wearing “gray jeans”

and “white sneakers.” She saw the man remove a gun from his pocket and heard a “pop,”

then saw the victim drag himself to his car and the shooter pocket the gun, walk to a silver

SUV, and drive away. She immediately called 911 to report the incident, and the 911

recording was entered into evidence and played for the jury. On the call, SH can be heard

telling the operator that the shooter was leaving in a “light silver truck” and describing him

as a black man in a white cap, gray pants, and white sneakers. Police followed up with SH

about the incident when she confirmed that she could identify the shooter if she saw him

again, and that conversation was captured by the responding officer’s body-worn camera.

However, the police conducted no identification procedure with SH.

On the stand, the prosecution asked SH if she could identify the individual she saw

shoot the victim. Defense counsel objected and the court inquired whether there had been

any prior identification procedure. The following ensued outside the presence of the jury:

THE COURT: Is she going to identify the defendant?

- 30 - - 31 - No. 28

[PROSECUTOR]: I don’t know. [DEFENSE COUNSEL]: No. THE COURT: So where in the hell did you get her? I mean, has anybody talked to her before? [PROSECUTOR]: The officer testified she spoke to her that night. THE COURT: Okay. But did she tell that cop that night that she could ID? [PROSECUTOR]: Yes, she did. THE COURT: And nobody went back and did an ID with her? [PROSECUTOR]: Correct, your Honor. THE COURT: So her name and her information is in the police reports? ... THE COURT: And [she] said, “I can ID”? [PROSECUTOR]: Yes, your Honor. THE COURT: Okay. Boy, that – forgive me, but that’s not really good police work.

The court allowed the prosecution to ask SH to identify the shooter, noting that the

identification would be subject to cross-examination. SH identified defendant.

In sum, a witness observed the shooting that led to defendant’s arrest and the witness

informed the police on the day of the crime that based on those observations she could

identify the shooter. The police and prosecutor inexplicably failed to conduct a pre-trial

identification procedure to test the reliability of the witness’s assertion. Instead, at trial, the

prosecutor called the witness to the stand and, after some preliminary questions, asked

her—without prior notice to the court or defendant—if the shooter was in the courtroom.

By that point, the witness had observed defendant sitting next to his lawyer. The obvious

inferences were that defendant was the person the witness had observed commit the crime

and that the State of New York chose to prosecute defendant because it was convinced of

- 31 - - 32 - No. 28

his guilt. The prosecutor might as well have pointed a finger at defendant. No action by

counsel or the trial court could mitigate the impact on the witness of this courtroom scene.

Nor could counsel effectively cross-examine this witness who was certain of what they

saw, even though the circumstances of the identification during the crime and in the

courtroom may render it unreliable. The only remedy once the witness had taken the stand

and observed the defendant in the courtroom was to declare a mistrial.

I disagree with the majority that defendant here received adequate notice that SH

would be asked to make a first-time, in-court identification merely because defense counsel

was provided a copy of the body camera footage during which SH told the police that she

could identify the shooter. First, at the time of the crime SH never said defendant was the

shooter, which of course she could not because she never claimed to personally know the

shooter or defendant. Second, defense counsel—like the court here—would have expected,

based on the witness’s declaration that SH could identify the shooter, that the police—

following good practice—would have conducted a pre-trial identification procedure with

her. When counsel was not advised of such procedure as CPL 710.30 requires, counsel

rationally could have assumed that the State was not confident in SH’s ability to identify

the shooter and therefore did not conduct a pre-trial procedure with her. Under these

circumstances, defense counsel cannot be faulted and defendant should not be prejudiced

for operating on the assumption that, even if the prosecutor called SH to provide

- 32 - - 33 - No. 28

information regarding the events she observed and to describe the person she claimed she

saw shoot the victim, the prosecutor would not risk a potentially damaging negative

response from SH and thus would not ask her to identify the shooter in court. Thus, here,

contrary to the majority’s conclusion, defendant is not foreclosed from challenging the lack

of a pre-trial procedure (see majority op at 8).10

The majority further concludes that the court did not abuse its discretion in denying

defendant’s request to preclude SH’s testimony because “the witness’s identification was

far from the only evidence linking defendant to this crime” (majority op at 9). But that

evidence was not without its weaknesses and depended on CC, who admitted he was

drinking heavily and who told the hospital staff that a woman he was arguing with shot

him. SH’s identification thus bolstered CC’s conflicting trial testimony that defendant was

the shooter.

10 The majority’s conclusion that defendant was aware that the witness might be asked to identify the perpetrator would require that defense counsel have made the following sequential assumptions: first, the completely fair assumption that the prosecutor complied with its obligations under Brady and the CPL; second, that, notwithstanding the lack of notice that the witness in fact identified defendant or failed to do so, the prosecutor might still ask the witness to make a first-time, in-court identification; and third, that the prosecutor believed, based on some other unrevealed information, that the witness would identify defendant as the shooter or that the prosecutor would pose the identification question to the witness without knowing whether they could identify defendant. As to the second assumption, counsel could reasonably assume the prosecutor would rather avoid the risk that SH would fail to identify defendant before the jury. And for the third assumption to hold, counsel would have to assume the prosecutor was withholding information or that they would act in contravention of a fundamental tenet of trial practice that you should never ask a question to which you do not already know the answer (see Irving Younger’s 10 Commandments of Cross Examination, Litigation Monograph Series No. 1, ABA Annual Meeting [1975]). None of these assumptions are reasonable and thus cannot support the majority’s conclusion that defense counsel was on notice. - 33 - - 34 - No. 28

Regardless, the quantum of evidence is quite beside the point. Whether measured

by its independent impact on the jury or by how it may have shored up the prosecution’s

other witness, it is still the case that SH identified defendant under circumstances that the

majority recognizes as dangerous (see majority op at 10). Furthermore, the trial court

admitted the identification testimony not because the court was persuaded of its

reliability—indeed, the court chided the prosecutor for the police’s failure to conduct a pre-

trial procedure and was surprised by the prosecutor’s uncertainty as to whether SH would

identify defendant—but because the court concluded defense counsel would have the

opportunity to cross examine SH. But as the majority acknowledges, cross-examination is

insufficient to eliminate this type of suggestiveness (majority op at 6).

As this Court has declared, “[t]he appellate courts have an overriding responsibility,

never to be eschewed or lightly to be laid aside,” to give assurance to the public “that there

shall be full observance and enforcement of the cardinal right of a defendant to a fair trial”

(People v Crimmins, 36 NY2d 230, 238 [1975]).

“[I]f in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self- standing and proof of guilt, however overwhelming, can never be permitted to negate this right” (id.; see also People v Mayo, 48 NY2d 245, 252 [1979] [“[T]here are some errors of constitutional magnitude that are so fundamental that their commission serves to invalidate the entire trial. These errors

- 34 - - 35 - No. 28

are simply not amenable to traditional harmless error analysis”], citing People v Felder, 47 NY2d 287 [1979]).

The admission of SH’s testimony presents a risk of wrongful conviction and constitutes an

error of constitutional magnitude that violated defendant’s freestanding right to a fair trial.

Thus “without regard to any evaluation as to whether the error[] contributed to []

defendant’s conviction,” our law instructs that the conviction cannot stand (Crimmins, 36

NY2d at 238). Therefore, I would reverse and grant defendant a new trial.

Order affirmed. Opinion by Judge Singas. Chief Judge Wilson and Judges Garcia, Cannataro, Troutman and Halligan concur. Judge Rivera dissents in an opinion.

Decided December 14, 2023

- 35 -