26 N.Y.3d 495
NY2015Background
- Complainant was attacked on a NYC bus; she later, two months after the incident, spontaneously saw and identified Marshall at a hospital and police were called; defendant was arrested.
- Eighteen months after the bus incident and the day before a court appearance, the ADA showed complainant a single arrest photograph of defendant during a pretrial meeting to discuss hairstyles/appearance.
- Defense sought a Wade hearing under CPL 710.30 to test whether the photograph display was an unduly suggestive identification procedure; the trial court held a limited Herner-style hearing to decide whether the display was mere trial preparation and denied a full Wade hearing.
- At trial complainant and the bus driver made in-court identifications; the People did not introduce the photograph into evidence. Defendant was convicted; Appellate Term affirmed. Leave to appeal granted.
- The Court rejects the Herner trial-preparation exception (pre-Wade mini-hearing) as inconsistent with CPL 710.30 safeguards, holds that Wade hearings are the proper mechanism, but finds the trial court’s denial of a Wade hearing harmless because the record supports an independent-source finding (complainant’s hospital identification).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Marshall) | Held |
|---|---|---|---|
| Whether a pretrial prosecutor photo display for "trial preparation" is outside CPL 710.30/Wade | Showing the arrest photo was trial preparation, not an identification procedure, so no Wade notice/hearing required | The photo display was an out-of-court identification procedure that could be unduly suggestive and required a Wade hearing | The Herner trial-preparation exception is rejected; such displays are subject to Wade scrutiny |
| Burden and procedure at a pretrial identification challenge | People need not present independent-source evidence unless suggestiveness is shown; initial burden to show lack of undue suggestiveness | Defendant entitled to a Wade hearing when undue suggestiveness is alleged; defendant bears ultimate burden to prove suggestiveness | Court adopts Wade/CPL 710.30 process: hold full Wade hearing; People bear initial burden to show nonsuggestiveness; defendant bears ultimate burden to prove undue suggestiveness; if suggestive, People must show independent source by clear and convincing evidence |
| Whether denial of a Wade hearing in this case requires reversal | The photograph was not offered at trial and complainant made an earlier hospital identification that provided an independent source | The denial deprived defendant of proper pretrial testing of suggestiveness and the record did not establish independent source conclusively | Error to deny Wade hearing, but harmless here because record supports independent-source finding (hospital identification) |
| Whether the trial court abused its discretion by limiting witnesses/records at the Herner hearing | Limitation was appropriate because issue was allegedly trial preparation vs. identification procedure | Defense should have been permitted to call ADA and further explore circumstances of photo display | Court declines to reach claim about denial to call ADA given harmless-error ruling; signals full Wade hearing would permit broader inquiry |
Key Cases Cited
- United States v. Wade, 388 U.S. 218 (1967) (establishes constitutional right to a pretrial reliability hearing for identification procedures)
- People v. Herner, 85 N.Y.2d 877 (1995) (held certain prosecutor photo displays were trial preparation; Court here rejects Herner’s trial-preparation exception)
- People v. Chipp, 75 N.Y.2d 327 (1990) (discusses defendant’s burden and suppression of unduly suggestive identifications)
- People v. Boyer, 6 N.Y.3d 427 (2006) (explains CPL 710.30 procedure and entitlement to Wade hearing when undue suggestiveness is alleged)
- People v. Rahming, 26 N.Y.2d 411 (1970) (in-court identifications admissible only if shown not to be tainted by improper pretrial procedures)
- People v. Trammel, 84 N.Y.2d 584 (1994) (recognizes that no Wade hearing is needed where record plainly shows no pretrial identification occurred)
- Moore v. Illinois, 434 U.S. 220 (1977) (police/prosecutor conduct can suggest an expected identification and bias witness)
- Simmons v. United States, 390 U.S. 377 (1968) (photographic displays carry inherent risk that witnesses will internalize photograph image over memory of actual event)