The People, Respondent,v.Kaity Marshall, Appellant.BriefN.Y.Nov 17, 2015To be argued by RICHARD JOSELSON (15 MINUTES) Court of Appeals STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAITY MARSHALL, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. RICHARD JOSELSON Attorneys for Defendant- Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-3451 Fax: (646) 616-4451 NOVEMBER 28, 2014 i TABLE OF CONTENTS INDEX TO APPENDIX ................................................................................ iii PRELIMINARY STATEMENT ...................................................................... 1 QUESTIONS PRESENTED ........................................................................... 3 SUMMARY OF ARGUMENT ....................................................................... 3 STATEMENT OF FACTS ............................................................................... 9 Introduction ........................................................................................... 9 The Herner Litigation ................................................................ 11 The Trial – The Incident ...................................................................... 20 The Arrest .................................................................................. 24 The Alibi Defense ...................................................................... 25 Verdict and Sentence ................................................................. 26 Appellate Proceedings ......................................................................... 27 ARGUMENT THE COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS WHEN IT DECLINED TO CONDUCT A WADE HEARING TO ASSESS THE SUGGESTIVENESS OF THE ASSISTANT DISTRICT ATTORNEY’S DISPLAY, SOME SIXTEEN MONTHS AFTER THE INCIDENT, OF APPELLANT’S LONE NYPD PRISONER MOVEMENT SLIP PHOTOGRAPH TO THE COMPLAINANT ON THE ERRONEOUS GROUND THAT THE DISPLAY CONSTITUTED PERMISSIBLE “TRIAL PREPARATION” THAT COULD NOT TAINT THE IDENTIFICATION. AT THE VERY ii LEAST, THE DEFENSE SHOULD HAVE BEEN PERMITTED TO CALL THE PROSECUTOR WHO CONDUCTED THE PROCEDURE AS A WITNESS AT THE PRE-WADE HERNER HEARING (U.S. CONST. AMEND. XIV; N.Y. CONST. ART. 1, §6). ................................................................ 28 New York’s Due Process Protections Against Suggestive Identification Procedures ........................................ 30 Herner and the Trial Preparation Exception ............................. 32 A Trial Preparation Exception to Wade is Inconsistent With Emerging Social Science on Human Memory and Identification ........................................... 35 Even if the Court Concludes That Herner Remains Viable, Its Application in Appellant’s Case Far Exceeds the Scope of Any Legitimate Trial- Preparation Exception to Wade ................................................. 45 The Related Conclusion by the Trial Court and the Appellate Term That Rison’s Hospital Identification Precluded the Possibility That the Photo Display Would Taint Her In-Court Identification is Flatly Inconsistent With This Court’s Existing Precedent .................. 47 At the Very Least, The Trial Court Should Have Permitted the Defense to Call ADA Shoock ............................. 49 The Erroneous Admission of the Complainant’s Identification Testimony, Untested at a Full Wade Hearing, Was Not Harmless Beyond a Reasonable Doubt. ........................................................................................ 53 CONCLUSION .............................................................................................. 56 iii INDEX TO APPENDIX Certificate Granting Leave ......................................................................... A-1 Decision and Order of Appellate Term ...................................................... A-2 Defense Motion For Herner Hearing ......................................................... A-7 Minutes of Court Proceeding, 1/6/10 ...................................................... A-34 Prosecution Opposition to Herner Hearing .............................................. A-42 Court’s Order Granting Herner Hearing .................................................. A-53 Herner Hearing Minutes ........................................................................... A-59 Defense Post-Hearing Brief .................................................................... A-103 Prosecution Post-Hearing Brief .............................................................. A-120 Court’s Herner Decision ........................................................................ A-134 Trial Transcripts ...................................................................................... A-137 Sentence Minutes .................................................................................... A-573 Certification ............................................................................................ A-578 iv TABLE OF AUTHORITIES Page(s) Cases Matter of James H., 34 N.Y.2d 814 (1974) ................................................... 49 Manson v. Brathwaite, 432 U.S. 98 (1977) ................................................... 30 People v. Adams, 53 N.Y.2d 241 (1983) ....................................... 3, 30, 31, 44 People v. Barton, 164 A.D.2d 917 (2d Dept. 1990) ...................................... 50 People v. Boyer, 6 N.Y.3d 427 (2006) ...................................................passim People v. Bulgin, 29 Misc.3d 286 (Sup. Ct. Bx. Co.) ............................. 33, 34 People v. Chipp, 75 N.Y.2d 327 (1990) .................................................passim People v. Crimmins, 36 N.Y.2d 230 (1975) .................................................. 53 People v. Dixon, 85 N.Y.2d 218 (1995) ........................................................ 32 People v. Ford, 86 N.Y.2d 397 (1995) .................................................... 43, 44 People v. Giles, 73 N.Y.2d 666 (1989) ......................................................... 48 People v. Glover, 266 A.D.2d 862 (4th Dept. 1999) ..................................... 34 People v. Grajales, 8 N.Y.3d 861 (2007) ........ 44_BA_Cite_C10D51_000077 People v. Herner, 85 N.Y.2d 877 (1995) ...............................................passim People v. Hopkins, 284 A.D.2d 223 (1st Dept. 2001) ................................... 34 People v. Jerrold, 278 A.D.2d 804 (4th Dept. 2000) .................................... 34 People v. LeGrand, 8 N.Y.3d 449 (2007) ..................................................... 37 People v. Mallory, 126 A.D.2d 750 (2d Dep’t 1987) .................................... 49 v People v. Medina, 236 A.D.2d 243 (1st Dept.) ............................................. 50 People v. Morales, 248 A.D.2d 173 (1st Dept. 1998) ................................... 34 People v. Ocasio, 134 A.D.2d 293 (2d Dept. 1987) ................................ 50, 51 People v. Peque, 22 N.Y.3d 168 (2013) ........................................................ 43 People v. Randolph, 232 A.D.2d 327 (1st Dept. 1996) ................................. 34 People v. Riley, 305 A.D.2d 430 (2d Dept. 2003) ......................................... 50 People v. Rodriguez, 79 N.Y.2d 445 (1992)7_BA_Cite_C10D51_000023, 32, 47_BA_Cite_C10D51_000079 People v. Santiago, 17 N.Y.3d 661 (2011) .................................................... 37 People v. Sokolyanksy, 147 A.D.2d 722 (2d Dept. 1989) ............................. 50 People v. Thornton, 236 A.D.2d 430 (2d Dept. 1997) .................................. 49 People v. Wharton, 74 N.Y.2d 921 (1989) ................................................ 8, 47 People v. Williams, 8 A.D.3d 74 (1st Dept. 2004) ........................................ 34 People v. Williamson, 79 N.Y.2d 799 (1991)................................................ 50 Simmons v. United States, 390 U.S. 377 (1968) ............................................ 49 State v. Henderson, 27 A.3d 872 (N.J. 2011) .........................................passim State v. Lawson, 291 P.3d 673 (Ore. 2012) ............................................passim Tegoseak v. State, 221 P.3d 345 (Alaska App. 2007) ................................... 42 United States v. Wade, 388 U.S. 218 (1967) ..........................................passim Statutes C.P.L. §710.30 ........................................................................................passim vi Other Authorities Nancy K. Steblay, N., Wells, G., & Douglass, A. B. (20014) The Eyewitness Post-Identification Feedback Effect 15 Years Later, 20 Psychology, Public Policy & Law 1, pp. 1- 18 (available at: http://public.psych.iastate.edu/glwells/Wells_articles_pdf/St eblay_et_al_Postidentification_feedback_2014_meta.pdf) .... 5, 38, 39, 41 Deffenbacher, K., Bornstein, B.H. & Penrod, S.D., (2006), Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion and Unconscious Transference, 30 Law & Hum. Behavior 3, pp. 287-307 (available at: http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1 174&context=psychfacpub) ...................................................... 5, 6, 40, 41 Wells, G. L. & Bradfield, A. L., (1998), Good, You Identified the Suspect: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 Journal of Applied Psychology, pp. 360-76 (available at: http://public.psych.iastate.edu/glwells/Wells_articles_pdf/G ood,_You_Indetified_the_Suspect.pdf) ................................................... 39 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAITY MARSHALL, Defendant-Appellant. : : : : : : : : : ---------------------------------------------------------- x PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Jr., Judge of the Court of Appeals, granted on July 21, 2014 (A. 1),1 Kaity Marshall appeals from an order of the Appellate Term, Second, Eleventh & Thirteenth Judicial Districts (A. 2-6), dated February 7, 2014, affirming a judgment of the Criminal Court, Kings County, rendered February 24, 2011, convicting appellant of attempted third-degree assault (P.L. §§110.00/120.00), attempted fourth-degree criminal possession of a weapon (P.L. §§110.00/265.01), third-degree menacing (P.L. §120.15) and second-degree 1 Parenthetical references preceded by “A.” are to the pages of appellant’s appendix. 2 harassment (P.L. §220.46), and sentencing her to seven days of community service and the completion of an anger management program (Michels, J., at pre-trial Herner hearing; Pickett, J., at trial and sentence). On August 28, 2014, this Court granted leave to appeal as a poor person and assigned Seymour W. James, Jr. of The Legal Aid Society as counsel on appeal. On information and belief, appellant remains at liberty, having fully discharged the terms of her sentence. The issue raised in this brief, regarding the propriety of the court’s refusal to conduct a Wade hearing to evaluate the assistant district attorney’s display, some sixteen months after the incident, of appellant’s NYPD prisoner movement slip photograph to the complainant on the grounds that it was “trial preparation” that did not taint the complainant’s identification, is fully preserved by counsel’s written motions, both before and following the Herner hearing, and the court’s Herner decision (A. 18-21, 103-118, 134- 36). So, too, is appellant’s alternative claim that the court erred by refusing to allow her to call the assistant district attorney who conducted the procedure at the Herner hearing (A. 112-114). 3 QUESTIONS PRESENTED 1. Did the court violate due process when it declined to conduct a Wade hearing to assess the suggestiveness of the assistant district attorney’s display, some sixteen months after the incident, of appellant’s lone NYPD prisoner movement slip photograph to the complainant on the erroneous ground that the display constituted permissible “trial preparation” that could not taint the identification or, alternatively, did the court err in refusing to allow the defense to call the prosecutor who conducted the procedure at the pre-Wade Herner hearing ? SUMMARY OF ARGUMENT This Court has long charted an independent course in according the citizens of this State due process protections against suggestive pre-trial identification procedures. People v. Adams, 53 N.Y.2d 241, 250-51 (1983). In Adams, this Court eschewed the United States Supreme Court’s totality of the circumstances approach to the admissibility of evidence regarding such procedures and ruled that, in New York, evidence about a suggestive pre- trial identification procedure is per se inadmissible against a defendant at trial. Id. at 250-51. New York facilitates enforcement of these critical rights by providing a procedural mechanism for defendants to challenge, prior to trial, the 4 admission of suggestive identification procedures. C.P.L. §710.30. Besides a small number of carefully delineated exceptions, People v. Boyer, 6 N.Y.3d 427, 431 (2006), defendants are entitled to a pre-trial Wade2 hearing to litigate the issue of whether a pre-trial identification procedure was unduly suggestive and, if so, whether the People can establish, by clear and convincing evidence, that the witness has an independent basis for making an in-court identification. People v. Chipp, 75 N.Y.2d 327, 335 (1990). Standing in apparent tension with this well-defined regime is the so- called “trial preparation” exception to C.P.L. §710.30, first created in this Court’s memorandum decision in People v. Herner, 85 N.Y.2d 877 (1995) and later expanded in subsequent decisions by the trial and intermediate appellate courts. See cases cited at pp. 33-35. Under the trial preparation doctrine that has developed, seemingly suggestive pre-trial procedures that would normally be regarded as suggestive and would certainly be subject to careful scrutiny at a full Wade hearing have been defined as outside the ambit of C.P.L. §710.30’s definition of an “identification procedure.” See Herner, 85 N.Y.2d at 878-79 and its lower court progeny. On the strength of this precedent, the trial court and the Appellate Term here deemed the prosecutor’s display to the complainant of a single 2 United States v. Wade, 388 U.S. 218 (1967). 5 photograph – appellant’s NYPD prisoner movement slip photograph – some 18 months after the brief assault and some 16 months after the complainant had seen appellant on the day of her arrest to be exempt from Wade hearing scrutiny because it qualified as acceptable trial preparation. This was error. Appellant submits that this Court ought to reconsider Herner, a decision that, save for a passing reference in a single dissent, it has never again even cited. Post-Herner social science and psychological studies in the area of eyewitness memory have established that the types of identification procedures deemed outside C.P.L. §710.30 by Herner and its lower court progeny create a significant risk of eyewitness error. See, e.g., Nancy K. Steblay, N., Wells, G., & Douglass, A. B. (20014) The Eyewitness Post-Identification Feedback Effect 15 Years Later, 20 Psychology, Public Policy & Law 1, pp. 1-18 (available at: http://public.psych.iastate.edu/glwells/Wells_articles_pdf/Steblay_et_al_Pos tidentification_feedback_2014_meta.pdf) (last visited November 22, 2014); Deffenbacher, K., Bornstein, B.H. & Penrod, S.D., (2006), Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion and Unconscious Transference, 30 Law & Hum. Behavior 3, pp. 287-307 (available at: 6 http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1174&context=p sychfacpub) (last visited November 22, 2014). Specifically, procedures licensed by Herner and progeny as trial preparation can cause the alteration of a witness’s memory of the underlying incident. Id. Such procedures can prompt eyewitnesses to exaggerate the quality of their observations of the crime, their attentiveness at that time and their certainty that they have selected the right person. Id. Such distortions have been demonstrated whether eyewitnesses are correct or incorrect in their identifications. Id. The resulting errors have also been shown to be particularly persuasive to a trier of fact. Id. Such procedures also greatly increase the prospect that a witness will identify the defendant in court, again, whether the witness is correct or in error. Id. Other state courts have considered studies such as these in reforming their own tests regarding the admissibility of identification evidence. See, e.g., State v. Lawson, 291 P.3d 673 (Ore. 2012); State v. Henderson, 27 A.3d 872 (N.J. 2011). This Court should do so as well and, on that basis, overrule Herner, reverse the order of the Appellate Term and direct a full Wade hearing in this case. Even if Herner retains vitality, the trial court should have conducted a Wade hearing in appellant’s case. In Herner, the witness had identified the defendant in a police-arranged lineup that was deemed non-suggestive after 7 a full Wade hearing. Thereafter, as the trial approached, the prosecutor twice re-displayed the lineup to the witness to prepare the witness’s testimony. Here, the facts are very different. The trial preparation display at issue did not involve a photo of a non-suggestive lineup, but rather a single photo showup of appellant’s NYPD prisoner movement slip photograph. Moreover, the complainant had never seen that photograph before. Indeed, she had never selected appellant in any non-suggestive identification procedure and had not seen her at all since she spontaneously decided that appellant was her assailant at Kings County Hospital, some two months after the incident and 16 months before the photo display. Thus, even if there were a place in New York law for a trial preparation exception to Wade, that place would not be appellant’s case, and, for that reason as well, a Wade hearing must be ordered. Nor could the lower courts properly conclude, in the absence of a Wade hearing, that the prosecutor’s photo display could not have tainted the complainant’s identification testimony. New York law is clear. A court may dispense with a Wade hearing only when the witness and the suspect are so well known to each other that suggestiveness cannot be an issue or when the witness is an undercover police officer making an identification at the conclusion of a pre-arranged police operation. See People v. Rodriguez, 8 79 N.Y.2d 445 (1992) (prior familiarity); People v. Wharton, 74 N.Y.2d 921 (1989) (police undercover witness). There are no other exceptions. Boyer, 6 N.Y.3d at 431-32. Here, the complainant and appellant had no prior relationship and the complainant obviously was not an undercover officer completing a buy-and-bust. That she had spontaneously identified appellant some 16 months before the show-up photo display provides absolutely no justification for dispensing with the requirement of a Wade hearing. On that basis as well, one should be ordered now. Finally, the defense was at minimum entitled to call ADA Shoock, the prosecutor who conducted the procedure, at the Herner hearing. Shoock was certainly readily available to testify. Indeed, he had conducted the initial portions of the hearing himself. Further, the record raised “substantial issues as to the constitutionality” of the procedure and the complainant’s incomplete and, at times, implausible testimony did not come close to obviating concerns about the matter. Chipp, 75 N.Y.2d at 338. Thus, if nothing else, appellant is entitled to have the case remanded for a de novo Herner hearing. 9 STATEMENT OF FACTS Introduction Kings County Docket Number 2008KN075233 charged appellant, Kaity Marshall, with third-degree assault, fourth-degree weapon possession and related offenses in connection with an incident that occurred on a New York City bus on July 3, 2008. At that time, Kathleen Rison, the complainant, became embroiled in a dispute with another female passenger, whom she had never seen before, that began when the woman stepped on Rison’s foot and ignored her requests to remove it. According to Rison, the woman struck her several times and threatened her with a knife before fleeing. Other passengers summoned police. The officers canvassed the area with Rison, but they could not locate the assailant. Rison gave police a general description, focusing largely on the perpetrator’s clothing. On September 10, 2008, Rison saw appellant, who was pregnant, heading to the Obstetrics Unit at Kings County Hospital and concluded that she was the woman who had assaulted her on the bus more than two months earlier. Rison summoned police and they arrested appellant. Rison did not view a lineup following the arrest. On January 5, 2010, some 18 months after the incident and 16 months after appellant’s arrest, an assistant district attorney showed the complainant 10 a single photograph of appellant that the New York City Police Department had taken on the day of appellant’s arrest. Working on the assumption that appellant was the perpetrator, the prosecutor used the photo to ask the complainant about certain aspects of appellant’s appearance on the date of the incident. Following the prosecutor’s disclosure, defense counsel moved for a hearing pursuant to this Court’s decision in People v. Herner, 85 N.Y.2d 877 (1995), to determine whether the photo showup constituted an identification procedure or permissible trial preparation. The court ordered the requested hearing, which was held over two days on June 4, 2010, and June 14, 2010. The complainant testified, but the court denied the defense request to call the assistant district attorney who had displayed appellant’s photograph. On October 13, 2010, after post-hearing briefing by both sides, the court, citing, inter alia, Herner, concluded that the photo viewing was part of trial preparation that would not taint Rison’s in-court identification. In the court’s view, the photo display was not an “identification procedure” under C.P.L. §710.30. Thus, the court did not order a Wade hearing. Following a bench trial in which the defense presented an alibi and the main prosecution proof was Rison’s identification, the court convicted 11 appellant of attempted assault, attempted weapons possession and related charges. The Herner Litigation At an appearance on January 6, 2010, the prosecutor, ADA Shoock, informed the court that he had been assigned to the case two days earlier and had met with Rison the previous evening (A. 36; Cal. 3).3 During that meeting he had, for his “edification,” shown the complainant a picture of appellant taken on the day of her arrest so that Rison could clarify her description of appellant’s hairstyle at the time of the incident and the arrest (A. 36; Cal. 3). The prosecutor stated that he was providing notice, but that, in his view, his actions amounted to permissible “trial preparation” and not an “identification procedure” (A. 36-37; Cal. 3-4). The court expressed skepticism, opining that such conduct might be appropriate in a multi- defendant case to ascertain the respective roles of individual defendants, but not in a single perpetrator case that hinged on of the identification (A. 37; Cal. 4). Nonetheless, the court deferred the matter pending further litigation by the parties (A. 37; Cal. 4). On February 24, 2010, the defense filed its omnibus motion, which sought, among other relief, a Herner hearing to assess the propriety of the 3 Unprefixed references preceded by “Cal.” are to the calendar appearance dated January 6, 2010. 12 prosecutor’s conduct (A. 18-21). Specifically, the defense noted that the prosecutor had displayed a single photo of appellant to Rison some 18 months after the incident and 16 months after the Rison had viewed appellant at the time of appellant’s arrest (A. 20). According to the defense, that display constituted an “identification procedure” under C.P.L. §710.30 and not simply trial preparation (A. 20). The display tainted any potential in-court identification and had the likely effect of transforming the initial identification into one that was now certain (A. 20-21). At the least, the defense had the right to explore the circumstances of the display at a Herner hearing (A. 21). In its reply, the prosecution provided additional details about the January 6, 2010, photo display (A. 45). Specifically, the prosecutor revealed that the picture of appellant that he showed Rison was the Prisoner Movement Slip photograph taken on September 8, 2008, while appellant was in custody (A. 45). The prosecutor added that he employed the photograph to distinguish the descriptions Rison had provided at the time of the incident and the time of appellant’s arrest (A. 45). On the merits, the prosecutor asserted that the defense had not established its entitlement to a Herner hearing (A. 48-51). 13 On April 20, 2010, the court issued a decision and order directing that a Herner hearing be held (A. 58). That hearing commenced on June 4, 2010. At the outset, the court indicated that it would decide whether the display of the photograph by the prosecutor was an identification procedure or merely trial preparation (A. 60; H1. 2) 4 If the court concluded that an identification procedure had occurred, it would then proceed to conduct a Wade hearing (A. 61; H1. 3) . The prosecutor added that, if the Court ultimately decided that a Wade hearing was required, then he would like the opportunity to establish independent source (A. 61; H1. 3). With regard to the Herner issue, the defense contended that the prosecution should bear the initial burden of establishing that the display constituted reasonable trial preparation (A. 62; H1. 4). The court decided to hear testimony and then to entertain further submissions by the parties (A. 63; H1. 5). The complainant, Kathleen Rison, was the only witness allowed to testify. Over defense counsel’s objection, the court initially permitted ADA Corey Shoock to examine Rison, although Shoock was the ADA who conducted the disputed viewing procedure (A. 63-64; H1. 5-6). When Rison returned for a second day of testimony, which included testimony about 4 H1 denotes the first volume of Herner hearing minutes, dated June 4, 2010. 14 ADA Shoock’s photo display, the court reconsidered its ruling and another prosecutor assumed the examination of Rison. Rison first described her initial observation of the assailant on July 3, 2008. While Rison and her adult daughter were riding a city bus in Brooklyn, a woman stood on Rison’s foot and looked out the window (A. 66; H1. 8). Rison was not wearing the glasses she needs “[f]or reading” (A. 67; H1. 9). It was bright out and Rison had sunglasses with her, but she was not wearing those either (A. 67; H1. 9). Rison said that the woman was taller than she was – Rison stood 5’3” – and had a darker complexion (A. 68-69; H1. 10-11). The woman had a straighter face, a “little more nose” than Rison and “properly groomed” hair (A. 69; H1. 11). Rison, who was 61 years old, “assumed” the woman was younger than 40, but was not sure whether she was over 30 (A. 72; H1. 14). She “guess[ed]” that the woman was older than 20 (A. 72; H1. 14). The woman was wearing green and white stripes and a scarf with green in it (A. 69; H1. 11). After repeatedly telling the woman she was standing on her foot and getting no response, Rison “pushed her foot [and] said, Ms., you’re standing on my foot.” (A. 68; H1. 10). The woman returned to her seat, which was across from Rison in the rear of the bus (A. 68; H1. 10). After a verbal argument, the woman “got up and started punching” Rison (A. 68; H1. 10). 15 The woman struck her “all in the face [and] in the eyes,” and Rison “started bleeding in the eyes especially.” (A. 69; H1. 11). When the complainant tried to fight back, the assailant threatened her with a knife (A. 70; H1. 12). After the bus stopped, Rison and the assailant exited. Rison initially stated that the incident took minutes, but she could not say exactly how long (A. 72; H1. 14). When, over objection, the prosecutor asked her to guess how long the “whole thing” took, Rison said it was “approximately maybe five, ten minutes” from the first punches until she “got off the bus.” (A. 73; H1. 15). She said she looked at her assailant’s face two or three times, but had “no idea” how long she spent doing so (A. 73; H1. 15). After exiting the bus, she did not see the assailant again that day. On September 10, 2008, Rison was sitting in a waiting room at Kings County Hospital when a man pointed out “another lady in the waiting room [who] had been in the emergency room that night.” (A. 75; H1. 17). Rison became convinced that this woman was the same individual who had assaulted her on July 3, 2008. According to Rison, she was certain because the trauma of the crime made her memory more vivid. She explained, “I was so scared that day that I took a good look at her face that if I see her again I sure would know her.” (A. 75; H1. 17). Appellant happened to be the woman that the man in the waiting room pointed out to Rison. The 16 complainant called the police and identified appellant as the assailant in the July 3rd attack (A. 76; H1. 18). Appellant was then arrested. Sixteen months later, on January 5, 2010, ADA Corey Shoock asked Rison to “come down to the office.” (A. 87; H2. 8).5 She met with him for “5 to 10 minutes” (A. 88; H2. 9). She could not remember if he asked her to describe her attacker (A. 88; H2. 9). He showed her a photograph and asked, “Do you know this picture?” (A. 89; H2. 10). She had not seen the photograph before (A. 92; H2. 13). She had never previously viewed any photograph of appellant (A. 92; H2. 13). Rison thought the picture was “blurry” or “not clear” and she purportedly just glanced at it (A. 89-90; H2. 10-11). She could not recall what ADA Shoock said in response to her comment about the picture’s blurriness (A. 92; H2. 13). She also could not recall whether the ADA said anything else about the photograph after he put it away (A. 91; H2. 12). Viewing the picture did not change Rison’s mind about anything (A. 84; H2. 5). Rison’s testimony contradicted the ADA’s earlier explanation that he had shown her the photograph to clarify something about appellant’s hairstyle. After defense counsel asked about that, Rison replied, “I don’t remember him asking.” She added that she “would remember that.” (A. 90- 5 H2 denotes the second volume of Herner hearing minutes, dated June 14, 2010. 17 91; H2. 11-12). After Rison completed her testimony, the court indicated that defense counsel had sought to call ADA Shoock to clarify the circumstances surrounding the photograph and to assist in the court’s determination of whether the viewing was an identification procedure. The court refused defense counsel’s request (A. 98; H2. 19). At the close of the hearing, the court indicated that it would not hear oral argument, but would receive written submissions from the parties (A. 98; H2. 19). Both sides agreed, however, that the sole question presented at this juncture was whether the prosecutor’s photo display was permissible trial preparation or an identification procedure (A. 99; H. 20). If the court concluded that an identification procedure had occurred, then it would set the case down for a Wade hearing (A. 99; H. 20). In its post-hearing brief, the defense argued that the assistant district attorney’s display of appellant’s arrest photo to the complainant was an identification procedure and not permissible trial preparation. See Affirmation, ¶ 10; Memo of Law, pp. 3-6 (A. 105, 109-112). Accordingly, the court was obliged to conduct a Wade hearing to ascertain whether the procedure was unduly suggestive. See Affirmation, ¶ 11; Memo of Law, pp. 8-10 (A. 105, 114-16). 18 Preliminarily, the defense argued that the People should bear the initial burden at the Herner hearing to come forward with evidence establishing that the prosecutor’s display of appellant’s photograph did not constitute an identification procedure. See Memo of Law pp. 2-3 (A. 108- 109). They had failed to carry that burden here, where the prosecutor had displayed appellant’s arrest photo to the complainant, who had neither participated in a lineup nor previously viewed appellant’s picture, in the District Attorney’s Office, some 1 ½ years after the incident and 16 months after appellant’s arrest. See Affirmation ¶ ¶ 5, 10; Memo of Law, pp. 4, 5 (A. 104-105, 110-111). To the defense, “the setting, the showing of an arrest photo, and the fact that this was arranged by a law enforcement official” established that this was an identification procedure and not trial preparation. See Affirmation, ¶ 10; Memo of Law, pp. 1-2 (A. 105, 107- 108) (emphasis in original). Accordingly, a Wade hearing was required. The defense urged that the record was adequate for the court to resolve the Herner issue. See Memo of Law, p. 6 (A. 112). To the extent that it was not, the defense sought permission to call ADA Shoock to further illuminate the circumstances of the viewing. See Affirmation, ¶ 12; Memo of Law pp. 6-8 (A. 105, 112-114). 19 In response, the prosecution argued that the display of appellant’s photograph constituted trial preparation and not an identification procedure. See Affirmation and Memorandum of Law, dated July 12, 2010 (A. 120- 132). To support this contention, the prosecution cited Rison’s prior identification of appellant – some 16 months earlier – at the time of her arrest and Rison’s testimony that the photograph was blurry and did not affect her memory. Id. These factors rendered the viewing of the photograph confirmatory. Id. The prosecution also sought to analogize the photo display to an inadvertent viewing because, in its view, the display was not designed to elicit an identification. Id. Finally, the prosecution argued that ADA Shoock’s testimony would be duplicative of the complainant’s and, hence, was not required at the Herner hearing. Id. On October 13, 2010, the court denied appellant’s request for a Wade hearing, holding that the viewing of appellant’s photograph was not an “identification procedure” but rather “took place as part of trial preparation” (A. 134-136). The court reached this conclusion because the complainant had previously identified appellant at Kings County Hospital at the time of her arrest. Id. According to the court, the prosecutor was permitted to engage in this kind of trial preparation and might even be obliged to do so (A. 136). 20 The Trial – The Incident A bench trial began on October 13, 2010, before Judge Geraldine Pickett. The prosecution’s case centered on the testimony of the complainant, Kathleen Rison. At “approximately 1:30 p.m.” on July 3, 2008, Rison was on the B12 bus in Brooklyn stopped near Utica Avenue and Empire Boulevard (A. 154; T1. 18).6 She and her daughter were on the bus returning from a medical appointment in Manhattan. At “approximately 1:31,” a woman “got up, came over me, over my shoulder, looking through the window; [and stood] on my foot” (A. 155; T1. 19). Rison asked her to move three times, but the woman failed to respond. Up to this point, Rison had not looked at the woman’s face (A. 157; T1. 21). The woman finally got off Rison’s foot and sat down on a seat across the bus (A. 159; T1. 23). Rison then looked at the woman and “said to her you didn’t have the courtesy of even saying I’m sorry.” (A. 157; T1. 21). The woman said she “didn’t feel like saying I’m sorry,” and she and Rison 6 T1 denotes the first volume of trial minutes, dated October 13, 2010. 21 then “exchanged [words] about the behavior, manners” (A. 157; T1. 21). The woman then walked over and began punching Rison. She punched Rison “in the face,” “in the nose,” and “in [the] head.” (A. 161; T1. 25). She hit her “repeatedly,” “a lot of times”. (A. 161; T1. 25). Rison explained that she became disoriented during the attack. “It hurt so bad. I fainted. I was dizzy. I was like that; just gone. My head just started turning and I started bleeding through my nose,” she said (A. 162; T1. 26). She lost her vision as well. “My eyes were black and blue and then I started getting – I couldn’t see.” (A. 162; T1. 26). At the time of trial, her eyes were still sometimes “blurry” (A. 167; T1. 31). With the passengers increasingly agitated, the driver finally stopped the bus (A. 163; T1. 27). After Rison tried to hit the perpetrator with a shoe, the assailant took out a knife and threatened to kill her (A. 164; T1. 28). This occurred after Rison had sustained the injuries to her eyes that clouded her vision. The bus driver then opened the door, and the assailant exited onto the street (A. 166; T1. 30). Rison left the bus and spoke to a police officer about the attack. She told the officer that a “black woman attacked her.” She provided the general build of the attacker, but did not provide a weight. Similarly, she told the officers that the attacker was “a little taller than me,” but did not provide a 22 height. Likewise, she told the officer the attacker “looked to be younger than my age,” but did not provide a more precise age (A. 193; T1. 57). The complainant told the police that the attacker’s clothes were “[g]reen and white, all in one” (A. 194, 197-198; T1. 58, 61-62), but she could not remember at trial if the perpetrator was wearing anything on her head. (A. 178; T1. 42). An ambulance drove Rison to the hospital shortly after the attack (A. 170; T1. 34). Rison identified appellant in court as her assailant (A. 156; T1. 20). She said she was 100% certain that she was correct (A. 170; T1. 34). The bus driver, Larry Joseph, testified that, at 1:30 p.m. on July 3, 2008, the B12 bus was at the corner of Schenectady Avenue and Lefferts Boulevard, heading east. As he left this stop, he heard shouting in the back of the bus (A. 270; T2. 14).7 He “looked up in the mirror and . . saw a female punching another female.” (A. 270; T2. 14). The attacker’s face was “at an angle” when he viewed her at a distance of “approximately 35 feet away” (A. 301; T2. 45). After this brief observation, he immediately returned his eyes to the road. “[F]rom the time that I saw what she did, I kept my eyes on the road,” he said (A. 273; T2. 17). The observation occurred when he briefly “looked up” as he was “leaving the stop,” before he 7 T2 denotes the second volume of trial minutes, dated October 14, 2010. 23 refocused on his driving (A. 290; T2. 34). He explained, “I can’t drive and look in the mirror at the same time.” (A. 306; T2. 50). His view soon became “blocked” by people “moving frantically on the bus.” (A. 273; T2. 17). Joseph followed protocol and drove the bus a “very, very long block” to the next stop at Utica Avenue and Empire Boulevard. He stopped there and the passengers got off the bus (A. 275; T2. 19). Although the perpetrator walked by Joseph as she exited, he did not get a clear view of her face because she was wearing large sunglasses that covered her cheeks and eyes. “She had big thick glasses that covered her entire eye area. It’s not like she had on the slim cut glasses,” he explained. (A. 300; T2. 44). He was able to recall that she was wearing green and white clothing with a short hairstyle (A. 292; T2. 36). Joseph also said the assailant “was not on the cell phone” when she exited the bus (A. 296; T2. 40). Joseph spoke to the police on the night of the incident, but he never was asked to make a pre-trial identification. At trial, he identified appellant as the woman who struck Rison (A. 286-87; T2. 30-31). He had never seen her before the day of the incident (A. 286; T2. 30). Police officer Manuel Miranda, called at trial by the defense, reported to the scene after the incident and spoke with Rison, who, he recalled, had a 24 bloody nose (A. 326-327; T3. 11-12).8 Rison described her attacker as a “female, black with brown hair” (A. 331; T3. 16). Rison was not able to provide a description of the assailant’s age, weight or height (A. 332; T3. 17). Rison added that the woman was wearing a green and white t-shirt and green sweat or jogging pants (A. 333; T3. 18).9 She had a white baseball cap on her head (A. 333; T3. 18). Following the incident, Miranda canvassed a four to five block radius of the bus stop with Rison (A. 335; T3. 20). The canvass did not result in an identification (P.O. Louis Soland: A. 238, 249; T1. 102; 113). The Arrest For many weeks after the attack, Rison did not see the perpetrator and the police did not contact her about the case (A. 198; T1. 62). On September 10, 2008, she went to the Kings County Medical Center to obtain medication (A. 201; T1. 65). While sitting in the pharmacy waiting room, she began chatting with a man seated next to her. This man pointed out a certain woman, among the many people in the waiting room, whom he had seen in the Emergency Room the previous night (A. 201; T1. 65). Although the 8 T3 denotes the third volume of trial minutes, dated October 19, 2010. 9 On cross, Miranda indicated that the descriptions contained in the complaint report may have come from other witnesses as well as the complainant (A. 337; T3. 22). He testified that he would have recorded any details he had received regarding the perpetrator’s appearance (A. 339; T3. 24). 25 man merely “pointed her out by the side,” Rison quickly became convinced that this woman was the person who had attacked her on the bus (A. 202; T1. 66). She saw the woman leave the waiting room and Rison followed her to the sixth floor (A. 202-203; T1. 66-67). Thereafter, Rison left the hospital to call the police, during which time the woman was out of her sight for less than five minutes (A. 214-215; T1. 78-79). When the police arrived, Rison led them up to the sixth floor of the hospital (A. 203; T1. 67). The sixth floor was where the OB/GYN or pre- natal unit was located (A. 525; P.O. Pablo Rivera: T4. 56). There she identified this woman – appellant Kaity Marshall – as the perpetrator of the July 3rd assault (A. 204; T1. 68). The police arrested appellant and drove her to the police station (A. 205; T1. 69). At the station, Rison and her daughter, whom Rison had called at the request of the police, saw appellant as she pulled up with police at the precinct (A 207-208; T1. 79-80). They were not asked to view appellant inside the precinct that day (A. 212; T1. 84). Rison’s daughter, who Rison testified was disabled, did not testify at trial (A. 212; T1. 84). The Alibi Defense The defense presented evidence that appellant could not have been the assailant because she was in a different location at the time of the attack. 26 Appellant Kaity Marshall and her mother, Carol Walters, both testified that they were washing blankets at a Laundromat near their home from 1:20 p.m. until approximately 2:00 p.m. on July 3, 2008 (A. 357, 444; T.3 42; T.4 6310). This testimony was corroborated by cell phone records, introduced through the testimony of Phillip Park, a retail account manager for AT&T (A. 404; T4. 23) The records showed that appellant made phone calls and sent text messages at the approximate time of the attack (A. 409-411; T4. 28-30). The phone records specifically showed that appellant was on her cell phone from 1:24 until 1:27 p.m. and from 1:33 p.m. until 1:35 p.m., and that appellant sent text messages at 1:21 p.m., 1:22 p.m. and 1:23 p.m. (A. 409-411; T4. 28-30). Verdict and Sentence The trial court found appellant guilty of all the charged offenses (A. 571; T6. 3)11. The court required her to complete an anger management program and sentenced her to seven days of community service. (A. 576- 577; S. 4-5).12 10 T4 denotes the fourth volume of trial minutes, dated October 19, 2010. 11 T6 denotes the sixth volume of trial minutes, dated December 1, 2010. 12 S denotes the sentencing minutes, dated February 24, 2011. 27 Appellate Proceedings Before the Appellate Term, appellant argued, among other issues, that the court wrongly concluded that the prosecutor’s display of appellant’s photograph to Rison was permissible trial preparation and, hence, that appellant was not entitled to a Wade hearing. Appellant further argued that the court had erred in refusing to allow the defense to call ADA Shoock at the Herner hearing. In a decision and order issued on February 7, 2014, the Appellate Term rejected these claims (A. 2-6). The court concluded that the photo display was permissible trial preparation, as the prosecutor had been assigned to the case only a day earlier (A. 4). In addition, the complainant contended the picture was blurry and unclear (A. 4). In any event, the court concluded that the photo display could not have tainted an in-court identification because the complainant had previously identified appellant when she was arrested (A. 4). Finally, the court rejected appellant’s claim that she had the right to call the prosecutor at the hearing as “without merit” (A. 4-5). On July 21, 2014, Judge Pigott granted appellant leave to appeal to this Court. 28 ARGUMENT THE COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS WHEN IT DECLINED TO CONDUCT A WADE HEARING TO ASSESS THE SUGGESTIVENESS OF THE ASSISTANT DISTRICT ATTORNEY’S DISPLAY, SOME SIXTEEN MONTHS AFTER THE INCIDENT, OF APPELLANT’S LONE NYPD PRISONER MOVEMENT SLIP PHOTOGRAPH TO THE COMPLAINANT ON THE ERRONEOUS GROUND THAT THE DISPLAY CONSTITUTED PERMISSIBLE “TRIAL PREPARATION” THAT COULD NOT TAINT THE IDENTIFICATION. AT THE VERY LEAST, THE DEFENSE SHOULD HAVE BEEN PERMITTED TO CALL THE PROSECUTOR WHO CONDUCTED THE PROCEDURE AS A WITNESS AT THE PRE- WADE HERNER HEARING (U.S. CONST. AMEND. XIV; N.Y. CONST. ART. 1, §6). About 18 months after a brief incident on a New York City bus and 16 months after appellant’s arrest, the prosecutor, a law enforcement official, summoned the complainant to his office, showed her a single photograph of appellant – an NYPD Prisoner Movement Slip photograph – and asked if she recognized it. He also asked how appellant’s hairstyle in the picture compared to her hairstyle on the day of the assault. The complainant, the main prosecution witness in the case, had never previously viewed appellant in a lineup or a photo array. 29 By most definitions, a single photo showup of this nature would be viewed as dangerously suggestive. Here, however, the trial court and the Appellate Term dismissed the conduct as perfectly acceptable trial preparation, relying on this Court’s 1995 memorandum decision in People v. Herner, 85 N.Y.2d 877 (1995). In the eyes of the lower courts, the prosecutor’s conduct was certainly permissible and, perhaps, even laudable. New York, however, has long identified reliability as the touchstone for evaluating identification procedures undertaken by state officials and, accordingly, has made notice and the opportunity for testing at a Wade hearing readily available to defendants who have been subject to such procedures. Herner carved out an exception for pre-trial identifications made in the service of “trial preparation,” but subsequent social science research has amply demonstrated that such procedures themselves create a significant risk of distorting an eyewitness’s memory of the event itself and of tainting any in-court identification. Accordingly, Herner ought to be reconsidered. Even if Herner retains vitality, however, a single photo showup conducted so long after the incident with a witness who had never previously viewed a defendant in a non-suggestive identification procedure falls well outside any plausibly legitimate “trial preparation” exception. The 30 lower courts here erred in concluding otherwise and, hence, appellant was entitled to a Wade hearing at which the suggestiveness of the pre-trial procedure and the witness’s independent source could be fully tested. The lower courts’ related conclusion, that no Wade hearing was required because the witness’s prior viewing of appellant at the time of her arrest rendered the subsequent photo showup essentially confirmatory fails under existing New York precedent. Finally, if the existing record were insufficient to resolve these claims – and it is not – the defense would, at the least, have been entitled to call as a witness at the Herner hearing the prosecutor who displayed the photograph to the complainant. The contrary conclusions by the lower courts denied appellant her constitutional right to due process. U.S. Const. Amend. XIV; N.Y. Const. Art. 1, §6. New York’s Due Process Protections Against Suggestive Identification Procedures In People v. Adams, 53 N.Y.2d 241 (1981), this Court examined state constitutional protections against suggestive pre-trial identification procedures in light of the Supreme Court’s recent decision in Manson v. Brathwaite, 432 U.S. 98 (1977). In so doing, the Court distinguished the purposes of the exclusionary rule governing suggestive identification procedures from the exclusionary rules governing unlawfully elicited 31 confessions and improperly obtained physical evidence. Adams, 53 N.Y.2d at 250-51. The latter rules served the salutary purpose of deterring violations by law enforcement officials, but were generally “at variance with the truth-finding process” because they resulted in the exclusion of reliable evidence. Id. The rule excluding improper pre-trial identifications was different because that rule: bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by police. Id. at 251. Given these reliability concerns, this Court rejected Brathwaite’s totality-of-the-circumstances approach, under which suggestive pre-trial procedures were not per se inadmissible. Id. Under New York law, a finding that a pre-trial identification procedure is unduly suggestive results in its automatic exclusion. People v. Chipp, 75 N.Y.2d 327, 335 (1990). When such a procedure has occurred, the People may elicit an in-court identification only if they establish an independent source by clear and convincing evidence. Id. New York law facilitates enforcement of this right by providing a procedural mechanism for defendants to challenge pre-trial identifications. See CPL § 710.30; People v. Boyer, 6 N.Y.3d 427, 431 (2006). The 32 prosecution must provide timely notice of any pre-trial identification procedure, which the defendant may then move to suppress. CPL §§ 710.30(1)(b); 710.60. The defendant may also move to preclude a later in- court identification on the ground that it is tainted by the suggestive pre-trial procedure. Unless the challenged pre-trial identification procedure falls outside the ambit of C.P.L. § 710.30 as a matter of law, the court must hold a Wade hearing to evaluate suggestiveness and to determine the proper remedy. See Boyer, 6 N.Y.3d at 431 (“[S]o long as the motion alleges undue suggestiveness, the defendant is generally entitled to a Wade hearing”); People v. Dixon, 85 N.Y.2d 218, 224 (1995) (“[T]he requirement of a Wade hearing remains the rule, and not the exception . . . .”); People v. Rodriguez, 79 N.Y.2d 445, 452 (1992) (A court may deny a Wade hearing “only if no legal basis for suppression is presented or if the factual predicate for the motion is insufficient as a matter of law”). The law strongly favors a full Wade hearing, and exceptions to the hearing requirement are narrow and few. See Dixon, 85 N.Y.2d at 224. Herner and the Trial Preparation Exception In People v. Herner, 85 N.Y.2d 877 (1995), this Court created an exception to C.P.L. §710.30’s notice and Wade hearing requirements where the disputed viewing involved “preparation for trial.” Id. at 879. In Herner, 33 following the defendant’s arrest for robbery, the complainant identified him in a pre-trial lineup. Id. at 878. The People provided C.P.L. §710.30 notice of that procedure, a Wade hearing was held and the court deemed the lineup admissible. Id. Thereafter, in preparation for trial, the prosecutor showed the complainant a picture of the lineup she had previously viewed and asked if she recognized it. Id. The complainant viewed the lineup photo once again on the morning that she testified at trial. Id. The defense protested and, after a hearing outside the presence of the jury, the trial court deemed the identification admissible and rejected defendant’s suppression claims. Id. at 879. This Court upheld the ruling, concluding that, “there was no identification procedure under C.P.L. §710.30” and that the “prosecutor’s showing of the photograph of the lineup was clearly preparation for trial.” Id. In the wake of Herner, the trial and intermediate appellate courts have applied the trial preparation exception to C.P.L. §710.30, sometimes in an expansive fashion. In People v. Bulgin, 29 Misc.3d 286 (Sup. Ct. Bx. Co.), the court invoked the trial preparation exception in approving an eyewitness’s viewing of black and white and color copies of a photo array from which he had previously identified defendant 16 months earlier. In language quoted by the trial court here, the Bulgin court opined that, in the 34 run up to trial, the prosecution was not only permitted to re-display the array to the witness, it was (perhaps) obligated to do so. Id. at 304-05. In People v. Jerrold, 278 A.D.2d 804 (4th Dept. 2000), the witness viewed, as part of trial preparation, not only the array from which he had previously made an identification, but another photograph of the defendant as well. Still, the court found the viewings exempt from Wade strictures. Id. In People v. Williams, 8 A.D.3d 74, 75 (1st Dept. 2004), People v. Randolph, 232 A.D.2d 327 (1st Dept. 1996) and People v. Hopkins, 284 A.D.2d 223 (1st Dept. 2001), the courts upheld, as legitimate trial preparation, prosecutorial displays of single photographs of the defendant and co-defendants for the purpose of “reviewing their respective roles in the crime.” Hopkins, 284 A.D.2d 223. In none of these cases had the witnesses previously viewed the photographs at issue. Id. Finally, in People v. Glover, 266 A.D.2d 862 (4th Dept. 1999) and People v. Morales, 248 A.D.2d 173 (1st Dept. 1998), the courts relied upon Herner to approve, as trial preparation, pre-trial viewings by police eyewitnesses of single photographs of the defendant. In Morales, the photo at issue was defendant’s arrest photo. The Appellate Term cited Morales in upholding the procedure here. While these cases differ in their particulars, the legal principle that emerges is clear: if an eyewitness’s viewing is 35 permissible as a part of trial preparation, it is not an “identification procedure” and, hence, is outside the notice and Wade hearing requirements of C.P.L. §710.30. A Trial Preparation Exception to Wade is Inconsistent With Emerging Social Science on Human Memory and Identification In recent years, social scientists and psychologists have published extensively in the areas of human memory and identification. State v. Henderson, 27 A.3d 872, 877 (N.J. 2011). This research is predicated on what has long been accepted as an established fact in the scientific community: that memory, including the memory of eyewitnesses, “is a constructive, dynamic and selective process.” Id. at 894. In many important respects, this body of work, peer reviewed and scientifically validated, “casts doubt on some commonly held views relating to memory” and “calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identification.” Id.; see State v. Lawson, 291 P.3d 673, 678, 686 (Ore. 2012) (“we believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated 36 to the dual principles of accountability and fairness”). Indeed, in Henderson and Lawson, the New Jersey and Oregon Supreme Courts considered this research in re-evaluating their procedures regarding the admissibility of identification testimony. As relevant here, this research undermines the viability and wisdom of Herner’s trial preparation exception for two reasons. First, a prosecutor’s display of the defendant’s image to an eyewitness as the image of the perpetrator, even after the eyewitness has made an initial identification, constitutes the kind of post-event information that can cause a witness to sub-consciously revise his or her memory of the underlying incident so as to exaggerate the original opportunity to view the assailant, the attentiveness of that observation and the certainty of the resulting identification of the defendant. Second, viewing a defendant’s image in preparation for trial can affect the reliability of any subsequent – here an in-court – identification. Given these dangers, which have become increasingly clear over time, this Court should reconsider Herner, hold that so-called trial preparation identifications fall within the ambit of C.P.L. §710.30 and, accordingly, that they must be evaluated for suggestiveness at a Wade hearing. In the social science eyewitness identification literature, “post-event information” is information conveyed to an eyewitness by members of law 37 enforcement after the witness has made an initial identification. Such information potentially effects an eyewitness’s memory of an event when it contains feedback that, either explicitly or implicitly, appears to confirm that the witness’s original identification was correct. As this Court has recognized, the proposition that such information may affect the accuracy of that witness’s identification is generally accepted in the relevant scientific community and may properly be the subject of expert testimony. People v. LeGrand, 8 N.Y.3d 449, 458 (2007). The premise is straightforward – “eyewitness testimony about an event often reflects not only what the witness actually saw, but also information the witness obtained later.” People v. Santiago, 17 N.Y.3d 661, 666 (2011); see Henderson, 27 A.3d at 900 (“feedback affects the reliability of an identification in that it can distort memory, create a false sense of confidence, and alter a witness’s report of how he or she viewed an event”). In a 20014 meta-analytic study examining 20 published articles involving approximately 6200 participants, a group of leading academics in the field of eyewitness identification detailed the effects of post-event information and confirming feedback on eyewitness memory.13 Nancy K. 13 Meta-analyses are an important and much cited subset of the scientific literature that evaluate the methodologies and findings of multiple published reports of experiments in a given area of inquiry. As the Special Master designated by the New Jersey Supreme 38 Steblay, N., Wells, G., & Douglass, A. B. (20014) The Eyewitness Post- Identification Feedback Effect 15 Years Later, 20 Psychology, Public Policy & Law 1, pp. 1-18 [“2014 Meta-Analysis”] (http://public.psych.iastate.edu/glwells/Wells_articles_pdf/Steblay_et_al_Po stidentification_feedback_2014_meta.pdf) (last visited November 22, 2014). Comparing witnesses who received some form of confirming feedback following their identification with those who did not, the study concluded that witnesses in the former group, even when they were mistaken, reported that they had better view of the underlying incident, were paying greater attention at the time, had a superior ability to make out facial details of the perpetrator, greater certainty in the correctness of their choice, greater ease in identification and a greater willingness to testify in court. Id. at 5. The authors of the meta-analysis concluded that: Confirming feedback significantly inflates eyewitness reports on an array of testimony- relevant measures, including attention to and view of the crime event, ease and speed of identification and certainty of the identification decision. Court in Henderson, 27 A.3d 872, explained, “The strength of meta-analyses is dependent, of course, on the strength of the underlying studies, but because of their breadth, meta-analyses are generally regarded as offering the most reliable statements of the scientific findings.” See State of New Jersey v. Larry R. Henderson, Report of the Special Master, at pp. 12-13, (http://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20.PD F%20(00621142).PDF) (last visited November 20, 2014). 39 Id. at 11. They found further that observers were more likely to believe the oral testimony of witnesses who had received confirming feedback. Id. Such feedback had a particularly powerful effect on witnesses who had identified an incorrect person. Id. Given these findings, the authors believed that, “courts should treat this post-identification feedback problem very seriously. Id. at 12. The 20014 meta-analysis confirmed the findings of the original work in the area by Professor Gary Wells. See Wells, G. L. & Bradfield, A. L., (1998), Good, You Identified the Suspect: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 Journal of Applied Psychology, pp. 360-76 (available at: http://public.psych.iastate.edu/glwells/Wells_articles_pdf/Good,_You_Indeti fied_the_Suspect.pdf) (last visited: November 22, 2014). Wells’ conclusions as well as those contained in an earlier meta-analysis animated the New Jersey and Oregon Supreme Court decisions in Henderson and Lawson. See Henderson, 27 A.3d at 899-900; Lawson, 291 P.3d at 710-11. The social science research also illustrates additional deleterious effects of the kinds of identification procedures that New York courts have deemed acceptable as trial preparation. Examining this research, the Lawson court concluded that, “viewing a suspect multiple times throughout the 40 course of an investigation adversely affects the reliability of any identification that follows those viewings.” Lawson, 291 P.3d at 708. In a meta-analysis involving two large samples – one consisting or 32 independent tests and 1664 participants and another consisting of 19 independent tests – researchers specifically examining the effect of exposing witnesses to mugshots of a suspect found: If a witness is exposed to mugshots subsequent to viewing a perpetrator and prior to an additional test of recognition memory, there is the possibility that the exposure to mugshot photos may bias the witness’s decision at that test. Deffenbacher, K., Bornstein, B.H. & Penrod, S.D., (2006), Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion and Unconscious Transference, 30 Law & Hum. Behavior 3, pp. 287-307, 287 (http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1174&context=p sychfacpub) (last visited November 22, 2014). The negative impact of such exposure is exacerbated when a witness views a relatively low number of mugshots or a single mugshot. Id. at 303. These distorting effects become even worse when the actual perpetrator is not present at the witness’s next viewing opportunity. Id. 41 In light of these important developments in the relevant field of knowledge, which occurred after Herner was decided, this Court ought to re- examine the validity of trial-preparation exception to Wade hearing scrutiny. All of the dangers of confirming post-event information are present when a prosecutor, the law enforcement official in charge of the case, displays the defendant’s image to the witness as the image of the perpetrator in the case. See Lawson, 291 P.3d at 711 (recognizing the danger that confirming post- event information can be communicated during “pre-trial witness preparation sessions”) 2014 Meta-analysis, at 16 (eyewitness memory distortion can arise from “reinforcing feedback from pretrial interaction with prosecutors”). The prosecutor’s conduct in this case provides an excellent example. By displaying appellant’s prisoner movement slip photo to the complainant and asking how appellant’s hairstyle looked on the day of the assault, the prosecutor necessarily conveyed his own unequivocal view that appellant was the culpable party. At best, such conduct communicates to an eyewitness that the prosecutor believes that the identification was accurate. Of course, this potential difficulty inheres in the very fact of a prosecution, but when such communication occurs during the display of the defendant’s image to the witness and is accompanied by questioning about the assailant’s 42 appearance during the crime, all of the dangers found by researchers in the 2014 meta-analysis are implicated. See also Tegoseak v. State, 221 P.3d 345, 354 (Alaska App. 2007) (identification procedures can instill false memories in victim regarding appearance of perpetrator at time of the incident). More, because a witness knows that an assistant district attorney runs the entire prosecution, the witness might well conclude that the prosecutor’s endorsement is based not only on the witness’s own account, but on the existence of other corroborating evidence as well. The scientific studies teach that, confronted with such information, the witness may well subconsciously exaggerate her original opportunity to observe the underlying event and the certainty of her choice that the defendant is culpable in a manner that artificially inflates the persuasiveness of her testimony before the trier of fact. What is more, modern research on multiple viewings and mugshot commitment establish that when an eyewitness views a defendant’s image – and particularly a defendant’s mugshot – as a trial approaches, an in-court identification becomes all but inevitable. Given all of this, so-called trial preparation identifications should be strongly discouraged. They certainly should not be exempt from the requirements of C.P.L. §710.30 or from scrutiny at a Wade hearing. For 43 these reasons, this court should reconsider Herner and, in appellant’s case, remand the matter for a Wade hearing. Stare decisis principles do not require that Herner be retained. Recently, in People v. Peque, 22 N.Y.3d 168 (2013), this Court recognized that there are occasions when “a preexisting rule, once thought defensible, no longer serves the ends of justice or withstands the cold light of logic and experience.” Id. at 194, quoting Policano v. Herbert, 7 N.Y.3d 588, 604 (2006). Specifically, in Peque, this Court overruled the portion of its earlier decision in People v. Ford, 86 N.Y.2d 397, 403-05 (1995) that had held that a court had no obligation to inform a non-citizen defendant of the potential immigration consequences of a felony guilty plea. Citing intervening Congressional changes to federal immigration law, the Peque Court held that Ford had to give way because it “was rooted in a legal and practical landscape that no longer exist[ed]” and because it had been “robbed of much of its logical and experiential foundation.” Peque, 22 N.Y.3d at 195. Herner concluded that so-called trial preparation displays of a defendant’s image did not implicate Wade concerns and, hence, were not even “identification procedures” under New York law. Just as changes in immigration law eroded the rationale of Ford, Herner’s conclusions 44 regarding identification are no longer supportable in view of the extensive intervening social science research rebutting its core premise. In addition, from the outset, Herner stood in tension with the rationale for excluding suggestive identification that this Court had articulated in its landmark decision in Adams, 53 N.Y.2d at 250-51. Herner’s trial preparation exception appears to derive, at least in part, from the absence of any prosecutorial bad faith. Prosecutors, Herner assumes, are not trying to influence a witness’s memory by displaying the defendant’s image in the period preceding the trial; they are merely preparing their witness to testify. Adams made clear, however, that the purpose of the rule excluding suggestive pre-trial identifications was not to deter misconduct of law enforcement, as was the case with improperly seized physical evidence or improperly elicited statements, but to ensure the reliability of the fact- finding process. Adams, 53 N.Y.2d at 250-51. Herner, which veered from this bedrock premise, was thus dubious from the start. Significantly, Herner itself was a brief memorandum decision containing little analysis. Save for a passing reference in a single dissenting opinion, People v. Grajales, 8 N.Y.3d 861, 865 (2007), this Court has never cited it again. Indeed, even when the Court detailed the circumstances in which it was appropriate to exempt out-of-court identifications from scrutiny 45 at a Wade hearing, it made no mention of Herner. Boyer, 6 N.Y.3d 427. Nor has any other state high court or federal circuit court cited Herner. While, as noted, the trial preparation exception to Wade has found some currency in the trial and intermediate appellate courts, in the nearly 20 years since Herner was decided, it has only been cited 16 times. Given these circumstances, this Court should reject it now. As a consequence, the court’s refusal to conduct a Wade hearing in appellant’s case denied her due process. U.S. Const., Amend. XIV; N.Y. Const. Art. 1, §6. Even if the Court Concludes That Herner Remains Viable, Its Application in Appellant’s Case Far Exceeds the Scope of Any Legitimate Trial- Preparation Exception to Wade Even should this Court elect to retain Herner, the lower courts here improperly applied it to appellant’s case. In Herner, after all, the witness had identified the defendant in a lineup after the incident. Herner, 85 N.Y.2d 877. The court conducted a full Wade hearing and deemed the lineup non-suggestive. Id. The trial preparation identifications in Herner involved two additional viewings of a photograph of the same non- suggestive lineup in the period immediately preceding the eyewitness’s trial testimony. Id. While emerging social science concerns about post-event information and multiple pre-trial viewings of a defendant’s photograph strongly favor reconsideration of Herner itself, the trial preparation viewing 46 in this case is far more troubling and would require reversal even if the Court leaves Herner undisturbed. Here, in contrast to Herner, Rison never identified appellant in a non- suggestive police-arranged procedure. Following her spontaneous identification at Kings County hospital two months after the incident, Rison did not see appellant again for another 16 months when the prosecutor assigned to the case showed her a single photograph – appellant’s NYPD prisoner movement slip photograph. While the circumstances of the viewing are not totally clear because Rison’s recollection of the encounter was so poor,14 it is apparent from the prosecutor’s own statement to the court that he showed Rison appellant’s photograph so that Rison could explain how appellant’s hairstyle was different on the date of the incident. Such a display expressly invited Rison to visualize appellant’s image at the time of her arrest and adjust one of her features – her hairstyle – to fit the features of the perpetrator at the time of the assault. By any measure, a display of this nature created a far greater risk of misidentification than the Herner display of a non-suggestive lineup photo from which the witness had already identified the defendant. Even if the Herner procedure is deemed appropriate, there is simply no justification for insulating the procedure in 14 For this reason, at the very least, the defense should have been permitted to call ADA Shoock at the Herner hearing. See, post, at pp.49-53. 47 this case from Wade scrutiny. For this reason as well, appellant’s case must be remanded for a Wade hearing. The Related Conclusion by the Trial Court and the Appellate Term That Rison’s Hospital Identification Precluded the Possibility That the Photo Display Would Taint Her In-Court Identification is Flatly Inconsistent With This Court’s Existing Precedent The trial court and the Appellate Term further concluded that, as a consequence of Rison’s identification of appellant at the hospital two months after the incident, no possible taint arose from her viewing of the NYPD prisoner movement slip photograph 16 months later. This conclusion, dubious by any metric, was untenable, as a matter of law, in the absence of a Wade hearing. This Court has strictly limited the types of pre-trial confrontations that fall outside C.P.L. § 710.30’s Wade hearing requirement. Boyer, 6 N.Y.3d at 429, 431-32. Indeed, other than the previously discussed Herner line of cases, the Court has recognized only two categories of identifications exempt from Wade hearing scrutiny: cases in which the witness views a perpetrator with whom the witness is already well acquainted (see People v. Rodriguez, 79 N.Y.2d 445 (1992)); and cases in which a trained police officer views the perpetrator during “the proper completion of an integral arrest procedure.” People v. Wharton, 74 N.Y.2d 921, 922-23 (1989). Even 48 when a police officer views a defendant at the outset of a street encounter and then identifies him when he is arrested soon thereafter, that showup identification must be examined at a Wade hearing. Boyer, 6 N.Y.3d 427. Beyond the two circumstances described in Rodriguez and Wharton, a court cannot deem an identification proper, as a matter of law, and a Wade hearing must be held to assess the propriety of the out-of-court procedure and its potential impact on an in-court identification. Applying these standards, both the trial court and the Appellate Term plainly erred when they determined, without a Wade hearing,15 that Rison’s hospital identification precluded any possibility that the photo display 16 months later would taint her in-court identification of appellant. Indeed, if a Wade hearing was required in Boyer to assess a show-up involving a police witness conducted only 30 minutes after the initial viewing, Boyer, 6 N.Y.3d at 429-31, then a Wade hearing was plainly required here, where the display of the prisoner movement photo occurred 16 months after Rison’s initial identification. This is particularly the case because, as courts have 15 Contrary to the argument made by the People in the Appellate Term, the hearing that occurred was no substitute for a Wade hearing. Critically, at the outset of the Herner hearing and at is conclusion, the court and both parties agreed that they were not conducting a Wade hearing and that the sole focus of the inquiry was to determine whether the photo display constituted legitimate trial preparation (A. 60-61, 99). This understanding by the parties below precludes the use of the resulting testimony for any other purpose. People v. Giles, 73 N.Y.2d 666 (1989) (testimony generated at another proceeding cannot be used to resolve a suppression claim). 49 long recognized, displays by law enforcement of single photographs to eyewitnesses present a particular danger of undue suggestiveness. Simmons v. United States, 390 U.S. 377, 384 (1968); Matter of James H., 34 N.Y.2d 814, 816 (1974); see People v. Thornton, 236 A.D.2d 430, 430-31 (2d Dept. 1997) (finding it unduly suggestive to “show a single photograph two months after the crime”); People v. Mallory, 126 A.D.2d 750 (2d Dep’t 1987) (“The showing of only the defendant's photograph was improper, since the viewing was not proximate in time to the crime”). At the Very Least, The Trial Court Should Have Permitted the Defense to Call ADA Shoock For the reasons previously stated, the record already establishes the impropriety of the prosecutor’s display of the NYPD prisoner movement slip photograph of appellant to the complainant and, hence, appellant’s entitlement to a full Wade hearing. Should the Court disagree, however, appellant was, at minimum, entitled to call ADA Shoock at the Herner hearing. Although “the right of compulsory process is essentially a trial right,” a court must permit a defendant to call a witness at a pre-trial Wade hearing if the record “raises substantial issues as to the constitutionality” of the challenged pre-trial procedure that the uncalled witness may be able to 50 resolve. People v. Chipp, 75 N.Y.2d 327, 336, 338 (1990). This is because a “defendant has the right to explore the circumstances under which an identification is made and is not required to accept the testimony of the People’s . . . witness on this issue at face value.” People v. Barton, 164 A.D.2d 917, 918-19 (2d Dept. 1990); People v. Riley, 305 A.D.2d 430 (2d Dept. 2003) (finding that the trial court erred by precluding defense from calling defense counsel, who witnessed the identification procedure and challenged the prosecution’s account of it); People v. Ocasio, 134 A.D.2d 293 (2d Dept. 1987); see also People v. Williamson, 79 N.Y.2d 799 (1991) (recognizing defendant’s right to cross-examine witness at pre-Wade hearing). Vindication of this right is especially paramount where the prosecution’s evidence fails to resolve important details of the alleged identification procedure. See People v. Sokolyanksy, 147 A.D.2d 722, 723 (2d Dept. 1989) (trial court erroneously precluded defense counsel from questioning other witnesses because “defendant was not required to accept Detective Henry’s testimony, which was notably incomplete, at face value”); Ocasio, 134 A.D.2d at 294 (trial court erroneously precluded defense counsel from calling witness where the police officer’s testimony was “notably incomplete”) see also People v. Medina, 236 A.D.2d 243 (1st 51 Dept.) (hearing court’s refusal to allow defense to call police witness possessing information on material issues entitles defendant to a de novo Mapp hearing) . Judged by these standards, the hearing court erred in refusing the defense request to call ADA Shoock at the pre-Wade Herner hearing. Preliminarily, unlike in Chipp, where the defense asserted a compulsory process right to call the civilian complainant at the Wade, here, the defense sought to call a member of law enforcement. Accordingly, Chipp’s concerns regarding the harassment of identifying witnesses and the transformation of pre-trial Wade hearings into unauthorized discovery proceedings, Chipp, 75 N.Y.2d at 337, are not remotely implicated here. More fundamentally, ADA Shoock plainly had material information to offer. He had already told the court, at the pre-trial proceeding on January 6, 2010, that he had displayed a single photograph of appellant to the complainant – the People later revealed in written submissions that the photo was an NYPD prisoner movement slip photograph – for the purpose of learning more about defendant’s hairstyle at the time of her arrest and the assailant’s hairstyle at the time of the incident. Such information plainly was relevant to the Herner inquiry. 52 What is more, the complainant herself offered little in the way of useful testimony about the circumstances of the display itself. She recalled a brief meeting with ADA Shoock on January 5, 2010. She could not, however, remember whether the ADA asked her to provide a description of the assailant before showing her the picture. She thought that the ADA had asked whether she “kn[e]w this picture,” but did not recall that he asked her anything about appellant’s hairstyle. Of course, at the earlier court appearance, ADA Shoock had explained that his entire point in conducting the photo display was to question Rison about appellant’s hairstyle. Rison also did not remember how the prosecutor responded when she told him that the photo seemed blurry to her. She did not remember what the prosecutor said about the photograph after he put it away. All of these omissions created evidentiary gaps that only ADA Shoock could fill. Further, Rison’s claim that the photo was not clear or “blurry” seems dubious at best. It is unlikely that the prosecutor would have selected a blurry photograph for use in questioning Rison. Moreover, the photograph at issue was from the NYPD prisoner movement slip. The whole point of such photographs is to provide a meaningful documentary record of an arrestee’s appearance. Had the court permitted the defense to call the ADA, the photograph itself could have been introduced for the court’s inspection. 53 In addition, the defense could have ascertained whether Shoock displayed only the photograph or the entire prisoner movement slip, which contains, among other information, the defendant’s pedigree information, the arrest charges, the name of the arresting officer and the precinct of the arrest. Had the ADA employed the entire prisoner movement slip, then the suggestiveness of an already suggestive procedure would have been increased. Without ADA Shoock’s testimony, the defense could not fully explore the relevant circumstances surrounding the critical issues at the Herner hearing. At the least, appellant is entitled to a new Herner proceeding, at which ADA Shoock will be required to testify. The Erroneous Admission of the Complainant’s Identification Testimony, Untested at a Full Wade Hearing, Was Not Harmless Beyond a Reasonable Doubt. The improper admission of Rison’s testimony cannot be overlooked as harmless beyond a reasonable doubt. People v. Crimmins, 36 N.Y.2d 230, 237 (1975). The only remaining prosecution evidence was the bus driver’s in-court identification, but that evidence was singularly unpersuasive. He testified that he observed the perpetrator’s reflection in the rear-view mirror at the back of the bus 35-40 feet away, for a few moments while paused at an intersection. Once the bus started moving, he returned 54 his eyes to the road and other people obstructed his view of the fight. He further said that he could not fully view the perpetrator when she exited the bus because she wore large sunglasses over her face. The driver’s distant, fleeting and obstructed observations did not provide a reliable basis for his in-court identification. Moreover, the defense presented credible evidence that appellant was elsewhere doing laundry with her mother at the time of the assault. This alibi was not only corroborated by appellant’s mother, but also by cell phone records showing that appellant made phone calls and sent text messages at the approximate time of the attack. The complainant testified that her interaction with the perpetrator began at approximately 1:31 p.m. The phone records show that appellant was on her cell phone from 1:33 p.m.-1:35 p.m. This fits squarely in the timeframe when the fight would have occurred.16 The cell phone records therefore provided strong corroboration of appellant’s alibi. The altercation between Rison and the perpetrator unfolded in several stages, which reasonably lasted past the time appellant received the phone call at 1:33 p.m.. The perpetrator first stood on Rison’s foot; Rison told the 16 In addition, the records show that she made a call that lasted from 1:24 until 1:27 p.m. and sent text messages at 1:21 p.m., 1:22 p.m., and 1:23 p.m. This leaves a very small window during the relevant period when appellant was not on the phone and could have physically committed the assault. 55 perpetrator three times that she was doing so; the perpetrator sat down across the aisle; Rison told the perpetrator “you didn’t have the courtesy of even saying I’m sorry; the perpetrator said she “didn’t feel like saying I’m sorry”; the two of them “exchanged words”; Rison told her “it pays to be decent and nice”; the perpetrator got up and walked over to Rison; the perpetrator hit Rison “a lot of times”; Rison attempted to fight back; the bus stopped and Rison threatened to hit the perpetrator with her shoe; the perpetrator took out a knife and told Rison “If you ever, I will stab you. I will kill you;” Rison put down the shoe; and the bus door finally opened and everyone exited. Although Rison did not state in trial testimony exactly how long the altercation lasted, it is reasonable to infer that these many events lasted at least two minutes, beyond when appellant received the phone call at 1:33. In addition, the bus driver’s testimony that the assailant was not on her cell phone when she exited the bus further diminishes the slim possibility that appellant somehow talked on the phone during the assault. Given appellant’s credible and corroborated alibi, and the unreliable identification by the bus driver, the erroneous admission of the complainant’s identification testimony was plainly not harmless beyond a reasonable doubt. Accordingly, this Court should reverse the order of the Appellate Term and remand the case to the trial court for a full Wade 56 hearing. Alternatively, the Court should remand the matter for a de novo Herner hearing at which the defense would be permitted to call the ADA to testify. CONCLUSION FOR THE REASONS ADVANCED HEREIN, THE ORDER OF THE APPELLATE TERM MUST BE REVERSED AND THE CASE REMANDED TO THE TRIAL COURT FOR A FULL WADE HEARING. ALTERNATIVELY, THE CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR A DE NOVO HERNER HERAING. Respectfully Submitted, SEYMOUR W. JAMES, JR. RICHARD JOSELSON Attorneys for Defendant- Appellant November 26, 2014
