The law has begun to catch up with the science of memory and perception. In June, the Division of Criminal Justice Services (DCJS) promulgated a significant number of new protocols for photographic and corporeal (live lineup) identification procedures. These procedures were disseminated to all police departments around the state and their presence or absence will now be the subject of the pre-trial Wade hearing, during which defense counsel can raise a constitutional challenge to suggestive pre-trial confrontations.

The protocols were the result of recent legislation, (L.2017, Ch. 59, eff. July 1, 2017), discussed in the prior column, permitting evidence at trial that a witness identified a suspect from a photograph. Such evidence will only be admissible if a “blind” or “blinded” identification procedure was utilized. The legislation overruled a 90-year-old evidentiary rule in New York that had precluded such evidence as part of a prosecutor's evidence-in-chief.

Although prosecutors will now have an additional opportunity to offer evidence at trial linking a defendant to the crime, they will also have an additional obligation—at the Wade hearing—to establish that the “blind” array was lawfully conducted and not suggestive. At a Wade hearing, while a defendant has the ultimate burden to prove that a pre-trial identification was unduly suggestive, the People have the burden of going forward with proof that the identification procedure was non-suggestive. People v. Chipp, 75 N.Y.2d 327 (1990).