Authorizes introduction of evidence in criminal trial or juvenile delinquency case of subsequent identification of defendant based on a photograph or video image

1 Co-sponsor

• Martin J. Golden

BILL NUMBER:S4790

Title of bill

An act to amend the criminal procedure law and the family court act, in relation to evidence of identification

Purpose

To permit witnesses to testify regarding out-of-court identifications of defendants made by means of pictorial, photographic, electronic, filmed or videotaped reproductions of such defendants.

Summary of provisions

This bill amends the following sections of the Criminal Procedure Law dealing with the rules of evidence: 60.25 (a)(1); 60.30; 710.20(6) and 710.30(1). This bill also amends the corresponding sections of the Family Court Act dealing with the rules of evidence with regard to juveniles, which are as follows: 343.3; and 343.4. These amendments add provisions to allow identification of defendants by pictorial, photographic, electronic, filmed or videotaped reproduction.

Justification

New York is alone in prohibiting the admission of evidence of an out-of-court identification conducted by other than corporeal means. An identification by photo array, no matter how fairly conducted, is inadmissible as part of the prosecution's case-in-chief. It is the rule in the Federal System and in the other 49 states that out-of-court photographic identification be treated the same as corporeal identifications (see Federal Rule of Evidence 801 (d)(1)(C). These jurisdictions recognize that there is no valid reason for an absolute prohibition against trial testimony regarding photographic identifications. All identification procedures are subject to the same pretrial hearings mandated by UNITED STATES V. WADE 388 U.S.218 (1967). Significantly. the current New York Law prohibition antedates the development of the WADE hearing and was intended to provide trial courts with the means to insure the propriety of extrajudicial identifications. Since the WADE decision, the existing New York Law is no longer justified.

Non-suggestive photo identifications are legitimate law enforcement tools. When these identifications are made known to jurors, they will be better able to understand the basis for a subsequent in-court identification. In addition, when an arrest results from a photographic identification, the prosecution must now follow an often tortured course of proof to withhold the evidence of such an identification from the jury. The result is that the jurors are often hard pressed to understand the circumstances that led to the arrest in the case.

Sufficient protection against identifications of insufficient or questionable certainty are provided by the pretrial WADE hearing and the availability of witnesses for cross-examination. As tong as a photographic or other non-corporeal identification meets the required legal tests of fairness and reliability, there is no valid reason to withhold it from the trier of fact. Indeed, to withhold such evidence in criminal trials is to create needless uncertainty and an unwarranted risk of unjust results. By permitting witnesses to testify regarding out-of-court identifications of defendants made by means of pictorial. photographic, electronic, filmed or videotaped reproductions, this bill will permit jurors to more accurately know

the facts of the case and thus arrive at a verdict more accurately related to those facts.

Legislative history

2011/2012 - S.1999 - Passed Senate/Assembly Judiciary 2007/2008 - S.638 - Passed Senate /Assembly Codes 2005/2006 - S.486 - Passed Senate/Assembly Codes 2003/2004 - S.3827-A - Passed Senate/Assembly Codes 2001/2002 - S.59 - Passed Senate/Assembly Codes 1999/2000 - S.130 - Passed Senate/Assembly Codes 1997/1998 - S.3503 - Passed Senate/Assembly Codes

Fiscal implications

None to the State.

Effective date

This act shall take effect on the first day of November next succeeding the date on which it shall have become a law.