New York Court Holds Show-Up Identification Procedure Was Unduly Suggestive

Recently, a state court issued an opinion in a New York gun case discussing the importance that police follow protocol when conducting identification procedures after the commission of a crime. The case illustrates the concept that an improperly performed identification procedure can be unduly suggestive, making any identification that was made by the crime victim inadmissible.

After police receive a report of a crime and locate a suspect, there are a number of different ways in which detectives can administer an identification procedure. Below is a list of a few common identification procedures:

  • Line-Up: In a line-up, the suspect (also called the “prime”) is lined up among several fillers, and the witness, who is often behind two-way glass, is asked if they recognize the person who committed the offense.
  • Photo Array: In a photo array, the witness is shown several photographs of people who match the description of the doer of the crime, and asked if they recognize the person who committed the crime.
  • Show-Up: In a show-up, police bring the witness to the suspect, and ask the witness if the suspect was the person who committed the crime.

Show-up identifications are the most problematic for several reasons. First, this is the only type of identification procedure where the witness is presented with a single option. Indeed, most witnesses place faith in the police to arrest the right person, and may be subconsciously persuaded that the suspect was the person who committed the crime even if they would otherwise be unsure. Second, the suspect is often in the back of a police car, surrounded by police, and may be in handcuffs at the time that the witness arrives to make an identification. This adds to the suggestiveness of the identification procedure.

The Facts of the Case

According to the court’s opinion, the defendant was arrested after a shooting. About 90 minutes after the shooting, and after the police had arrested the defendant, they took the defendant to the hospital where he was identified by the person who was shot. After that initial show-up identification, police took the defendant into the parking lot where he was then identified by a witness who was initially not cooperative. At the time of the second show-up identification, the defendant was handcuffed and “flanked by police.” The defendant challenged only the second show-up identification.

The court explained that show-up identifications are disfavored because they are inherently suggestive, but are not presumptively invalid. The court noted that a show-up identification is permissible if there is “temporal and spatial proximity” to the scene of the crime and there is no evidence that it was unduly suggestive.

Here, the court determined that the second show-up identification procedure was unduly suggestive and impermissible. The court relied on the fact that the defendant was in handcuffs and surrounded by police at the time the identification was made. In addition, the court noted that police could have arranged a line-up procedure, which would have been much less suggestive.  It is important to note that line-up procedures are rarely done by most departments and also require that certain procedures be followed to ensure the fairness of the line-up.

Have You Been Arrested for a New York Crime?

If you have recently been arrested after being identified in a show-up, line-up or other identification procedure, you should contact the dedicated New York criminal defense attorneys at the law firm of Tilem & Associates. At Tilem & Associates, we represent individuals charged with serious offenses such as New York gun crimes, robberies, assaults, and burglaries. To learn more about how we can help you defend against the charges you are facing, call 877-377-8666 to schedule a free consultation today.

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