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New York State has passed a law which takes effect today regarding the use of photographic identification at the trial of criminal matters.  This will have wide-reaching effects on how these types of cases are handled, prosecuted, and defended.

A photo array (sometimes referred to as a photospread) is an investigative tool used by the police where they are trying to identify someone who has allegedly committed a crime.  A photograph of a suspect, along with (usually) five other photos, is shown to a witness and the witness is asked if they recognize anyone and how they recognize that person.  This is done to either identify a suspect to the police or to ensure that the person they believe committed the crime is the right person.

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 which was just passed 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.

If you are involved in a case where there was an identification made using a photo array, there are some important things you need to know about this new law, and how it will affect your case.

  1. This is not really a drastic or unheard of solution.  In fact, New York was the only state in the country which did not permit the use of photo arrays at trial.  The rationale behind the prohibition on this evidence was that most photo arrays would contain a mugshot of the suspect.  The fact that these were usually done prior to arrest meant that the jury might unfairly speculate about why the police would have a mugshot of someone who hadn’t been arrested yet, leading them to conclude that the defendant had been arrested in the past.  This is unfair to the defendant, because the fact that he or she has previously been arrested doesn’t have anything to do with guilt or innocence in this case.  Today, many photo arrays are prepared with driver’s license photos or even pictures taken from Facebook or other social media, so the stigma of using a mugshot has gone away.
  2. There are new procedures which can help a suspect.  The way it used to work was the lead detective would prepare the photo array by taking a picture of the suspect and then five more pictures of people of similiar appearance to the suspect and then show it to a witness.  The only rule was that the photo array and the manner in which it was shown to the witness could not be “suggestive”, meaning that there couldn’t be anything about the photos or what the detective said or did that suggested who the witness should pick.  The new law requires a “blinded procedure”, meaning that the detective who shows the witness the photo array must be someone who does not know who the suspect is.  This would eliminate any conscious or even subconscious actions or words by the detective which might point the witness in a particular direction. This new law, if applied correctly, could help in situations where a detective might do something – even unintentionally – to suggest who the witness should pick.
  3. A violation of this law doesn’t completely eliminate the identification.  Before the photo array can be introduced at trial, there has to be a hearing before a judge in order to make sure that the rules were followed correctly.  If the judge determines that the detective violated this new law, that doesn’t mean that the witness can no longer identify the defendant at trial.  As long as the procedure was not otherwise suggestive, the witness can still have their dramatic moment in court where the prosecutor asks “Now do you see that person in the courtroom today?” and the witness of course points to the defendant and says “Yes, right over there.”  All that would be precluded would be the use of the actual photo array before the jury.  This is still helpful because most attorneys will argue that the witness was aware that someone would sitting at the defense table next to an attorney, and of course that’s who they’re going to point at.

Any law that provides new tools for the prosecution to use at trial can be harmful to a criminal defendant.  However, if this law is properly followed at the precinct level, it could eliminate some improper identifications and help prevent some innocent people from being wrongly identified.

The Law Office of Glenn Kurtzrock is available to assist you with your criminal case.  We’re available 24 hours a day, 7 days a week.  Call right now for a free consultation at (631) 539-1640, or visit our website at https://www.kurtzrocklaw.com