A new law has recently gone into effect in New York State which fundamentally changes a basic tenant
of New York Criminal Practice. New York was the only state in the United States that still did not
allow evidence of a prior identification made by a witness via a photo array to be introduced at trial.
The thought has always been that presentation of a photo array to a jury would suggest that the
defendant has been in trouble before – why else would they have a photo of him at the time of the
identification procedure. This was deemed to be unfair to the defendant and improper. However, many
felt that this concern was outdated, and New York decided to join the vast majority of other states in
allowing for the prior photo array to be introduced at trial, but with very strict requirements on how the
photo array is compiled and out the identification procedure is conducted. Strict requirements or not,
this new allowance will have a wide-reaching and significant impact on criminal prosecutions in New
York City, including Manhattan, Brooklyn, the Bronx and Queens, all the way upstate to Rockland
County, Westchester County and beyond.
A photo array is one form of identification procedure – a tool used by police and other law enforcement
agencies to identify the alleged perpetrator of a crime. A photograph of the suspect is acquired one way
or another, and put on a single page with photos of other individuals. When compiled appropriately, the
other individuals should meet the same general description of the suspect. For example, if a victim of a
crime tells the police that the perpetrator was a black male, it would be highly improper for a detective
to compile a photo array with only one photo of a black male, and the rest white men and/or women.
This would be highly suggestive, would clearly not be admissible at trial, and would likely preclude the
victim from even identifying the person at a trial, since they have arguably been tainted by this
Photo arrays, when used in investigations in New York, have always been subject to scrutiny for this
reason – because if a photo array was unduly suggestive, the witness would be prevented from
identifying the suspect again at a later proceeding. However, there was never a question that the photo
array itself would be precluded from the trial. Now, that has all changed. The new law allows the
prosecutor, such as the Manhattan District Attorney’s Office, to put the photo array itself into evidence,
and present it to a trial jury as confirmation that the witness identified the defendant was the one who
committed the crime back on that day that the photo identification procedure was performed. This
would be powerful evidence at a trial, especially since such a photo array identification would have
been done much closer in time to the incident itself, as opposed to a trial that takes place months or
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.
As mentioned, there are requirements and safeguards that have been put in place that go even beyond
the standards for analyzing the propriety of the photo array procedures in the past. These new
requirements could incentivize police and prosecutors to conduct these identifications in even more fair
ways, for hope of being able to introduce it at a trial. For example, the new law requires that, to be
admissible at trial, the photo array must be conducted “blinded,” meaning the detective who presents
the photo array does not know who the suspect is. This can prevent the conscious, or even unconscious
suggestion by a detective to the witness about who the “correct” answer is, or who the actual suspect is.
There was no such requirement previously with regard to suppressing the subsequent in-court
identification at trial. In addition, before a photo array can be introduced at trial, there must be a formal
hearing before a judge to determine whether the various rules and requirements of the new law were
complied with. If the rules were not followed, the witness can still identify the defendant at trial,
provided that the photo array was not unduly suggestive by the old standards. However, as practitioners
become accustom to these new requirements, and see the benefits and increased fairness they might
create in the justice system, these new requirements could bleed into our general understanding of what
is and what is not “unduly suggestive.”
Any person accused of a crime where there was a photo array identification procedure performed in the
course of the investigation must be aware of this hugely impactful new law, which can change the
entire strategy of a criminal defense potentially. It is critical that a person in this position be represented
by a criminal defense attorney familiar with these new standards.
This blog entry is not an attempt to substitute for an examination of your particular case by your own criminal defense lawyer who will determine what is best for your case. Instead, this entry can give you the foundation to better understand recent changes to photo array identification evidence in New York courts. To better understand crimes, possible defenses, and how you can best protect yourself, consult with your criminal lawyer.