New York is the only state that does not permit evidence that, prior to trial, a witness identified the defendant from a photograph.1 This evidentiary rule, that has existed at common law and statutorily for the last 83 years, has been questioned and even challenged over the last few years by at least one lower court as well as academics and independent groups examining the causes of wrongful convictions. In addition, the New York Court of Appeals will revisit the issue of photographic identification next month. This column will review the arguments both for and against the admission of such evidence and whether the rationale for its exclusion has become obsolete.
Background
At common law, under the theory that such testimony was improper bolstering, the hearsay rule prohibited testimony of a witness at trial that he had previously identified the defendant, whether at a lineup or through photographs.2 The former Code of Criminal Procedure carved out an exception to that rule by permitting a witness to testify about a corporeal identification (lineup). The statute made no allowance for testimony about a prior photographic identification. This rule was adopted by the current Criminal Procedure Law (Section 60.30).
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