The People, Respondent,v.Kaity Marshall, Appellant.

Brief

N.Y.November 17, 2015

To 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. REPLY 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 APRIL 9, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT ..................................................................... 1 REPLY STATEMENT OF FACTS ................................................................ 1 REPLY ARGUMENT ..................................................................................... 2 CONTRARY TO RESPONDENT’S CONTENTIONS, A WADE HEARING WAS REQUIRED TO EVALUATE THE SUGGESTIVENESS OF THE PROSECUTOR’S DISPLAY, SOME 18 MONTHS AFTER THE BRIEF INCIDENT AND 16 MONTHS AFTER APPELLANT’S ARREST, OF A SINGLE PHOTOGRAPH OF APPELLANT – HER PRISONER MOVEMENT SLIP PHOTOGRAPH – TO THE COMPLAINANT IN THE DISTRICT ATTORNEY’S OFFICE. ........................................................... 2 I. Contrary to the People’s arguments, Herner is out- of-step with the Court’s broader identification-law jurisprudence and it fails to delineate procedures sufficient to protect defendants who have been exposed to suggestive identification procedures (Answering RB at 33-34, 41-44). .............................................. 5 II. Contrary to the People’s arguments, this Court can and should consider the overwhelming weight of published social science research in assessing the wisdom and propriety of Herner’s trial preparation exception to Wade (Answering RB at 37-39, 40- 41). ............................................................................................ 14 ii III. Even were this Court to retain Herner, it should reject the People’s effort to extend it to cases such as this one (Answering RB at 34-36). ....................................... 19 IV. Contrary to the People’s arguments, the complainant’s confusing and incomplete Herner hearing testimony about the circumstances of the photo display make a Wade hearing more, and not less critical, particularly because, at the People’s behest, the court denied the defense application to call, as a witness, the prosecutor who conducted the procedure and whose account of the viewing, at minimum, seemed in tension with the complainant’s (Answering RB at 29-33, 39, 55- 59). ............................................................................................ 21 V. The People’s request that the Court uphold appellant’s conviction by finding that the complainant had an independent source for her in- court identification is unpreserved and waived, as well as unreviewable, and would deny appellant a fair opportunity to litigate that issue (Answering RB at 44-49) .............................................................................. 26 CONCLUSION .............................................................................................. 31 iii TABLE OF AUTHORITIES Page(s) Cases Brady v. Maryland, 373 U.S. 83 (1963) ............................................................................. 24, 25 Muller v. Oregon, 208 U.S. 412 (1908) ................................................................................. 16 People v. Adams, 53 N.Y.2d 241 (1983) ....................................................................... 6, 9, 13 People v. Barton, 164 A.D.2d 917 (2d Dept. 1990) .............................................................. 25 People v. Boyer, 6 N.Y.3d 427 (2006) ............................................................................... 7, 9 People v. Chipp, 75 N.Y.2d 327 (1990) ............................................................. 10, 13, 14, 25 People v. Concepcion, 17 N.Y.3d 192 (2011) ............................................................................... 30 People v. Echevarria, 6 N.Y.3d 89 (2005) ................................................................................... 30 People v. Giles, 73 N.Y.2d 666 (1989) ............................................................................... 30 People v. Gissendanner, 48 N.Y.2d 543 (1979) ............................................................................. 6, 7 People v. Grajales, 8 N.Y.3d 861 (2007) ............................................................................. 3, 11 People v. Herner, 85 N.Y.2d 877 (1995) ........................................................................passim iv People v. Johnson, 95 N.Y.2d 368 (2002) ............................................................................... 15 People v. LaFontaine, 92 N.Y.2d 470 (1998) ............................................................................... 30 People v. Laing, 79 N.Y.2d 166 (1992) ............................................................................... 13 People v. LeGrand, 8 N.Y.3d 449 (2007) ................................................................................. 17 People v. Mato, 83 N.Y.2d 406 (1994) ............................................................................. 8, 9 People v. Nieves, 67 N.Y.2d 125 (1986) ............................................................................... 30 People v. Nolasco, 70 A.D.3d 972 (2d Dept. 2012) ................................................................ 11 People v. Ocasio, 134 A.D.2d 293 (2d Dept. 1987) .............................................................. 25 People v. Peque, 22 N.Y.3d 168 (2013) ............................................................................... 16 People v. Quinones, 228 A.D.2d 796 (3d Dept. 1996) .............................................................. 24 People v. Robinson, 280 A.D.2d 687 (2d Dept. 2001) .............................................................. 24 People v. Rodriguez, 79 N.Y.2d 445 (1992) ............................................................................. 8, 9 People v. Santiago, 17 N.Y.3d 661 (2011) ............................................................................... 17 People v. Sokolyanksy, 147 A.D.2d 722 (2d Dept. 1989) .............................................................. 25 v People v. Tarsia, 50 N.Y.2d 1 (1980) ................................................................................... 30 People v. Thompson, 83 N.Y.2d 477 (1994) ............................................................................... 16 People v. Walker, 119 A.D.3d 1402 (4th Dept. 2014) ........................................................... 11 People v. Wharton, 74 N.Y.2d 921-922-23 (1989) ................................................................ 8, 9 People v. Whidden, 51 N.Y.2d 457 (1980) ............................................................................... 16 State v. Henderson, 27 A.3d 872 (N.J. 2012) ............................................................... 15, 17, 18 State v. Lawson, 291 P.3d 673 (Ore. 2012) ................................................................... 15, 18 United States v. Marshall, 511 F.2d 1308 (D.C. Cir. 1975) ................................................................. 9 United States v. Thompson, 27 F.3d 671 (D.C. Cir. 1994) ..................................................................... 9 Watkins v. Sowders, 449 U.S. 341 (1981) ................................................................................. 13 Statutes C.P.L. §470.05 ............................................................................................... 30 C.P.L. §710.30 ................................................................................. 2, 7, 11, 12 Other Authorities 22 N.Y.C.R.R. §500.23(4)(iii) ....................................................................... 16 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 (http://bit.ly/1aaMu5O) ............................ 18_BA_Cite_A152A7_000081 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 Kaity Marshall submits this reply brief in answer to Respondent’s Brief (hereafter cited as “RB”), which we received on March 24, 2105. Appellant’s original brief fully sets forth the facts and procedural history of the case. Those need not be reiterated here. Rather, the sole purpose of this reply is to respond to various contentions raised by the People in their brief. The Court has extended our time to file this brief until April 10, 2015. REPLY STATEMENT OF FACTS Appellant relies on the Statement of Facts in her main brief. 2 REPLY ARGUMENT CONTRARY TO RESPONDENT’S CONTENTIONS, A WADE HEARING WAS REQUIRED TO EVALUATE THE SUGGESTIVENESS OF THE PROSECUTOR’S DISPLAY, SOME 18 MONTHS AFTER THE BRIEF INCIDENT AND 16 MONTHS AFTER APPELLANT’S ARREST, OF A SINGLE PHOTOGRAPH OF APPELLANT – HER PRISONER MOVEMENT SLIP PHOTOGRAPH – TO THE COMPLAINANT IN THE DISTRICT ATTORNEY’S OFFICE. In its brief memorandum decision in People v. Herner, 85 N.Y.2d 877 (1995), this Court created what has come to be known as the trial-preparation exception to the generally applicable requirements of C.P.L. §710.30. Under that exception, which has been sporadically applied by trial and intermediate appellate courts since 1995, pre-trial photographic displays to an eyewitness, many of which would normally be regarded as suggestive, are exempt from statutory notice requirements and Wade hearing scrutiny because they are not “identification procedures,” as the statute defines that term, but, rather, permissible steps undertaken by a prosecutor in the course of preparing for trial. In the ensuing two decades, as widely published social science research has expanded our understanding of human memory and identification, this Court has never again applied the trial-preparation exception. Indeed, it has cited Herner only once, in a 3 passing reference in a dissenting opinion. People v. Grajales, 8 N.Y.3d 861, 865 (2007). Herner, however, was the basis for the trial court’s conclusion here that the prosecutor’s display of a single photograph of appellant to the complainant in the DA’s office about 1½ years after the charged offense constituted permissible trial preparation and, hence, did not need to be examined at a Wade hearing. In our main brief, we asked this Court to reconsider Herner, both because it was at odds with this Court’s well-established identification-law jurisprudence and because it was inconsistent with contemporary social science research regarding identification and human memory. Alternatively, we argued that appellant’s case was distinguishable from Herner and, thus, that a Wade hearing was required here even if Herner retained viability. Finally, given the complainant’s vague and unilluminating testimony about the procedure at the Herner hearing, we argued we argued that, at minimum, the defense should have been permitted to call the prosecutor who conducted the procedure to provide his version of events. In their response, the People do not dispute that underlying incident in this case involved a relatively brief encounter on a New York City bus between the complainant and an assailant she had never seen before; that following the incident the complainant provided only a generic physical description of the perpetrator to police; that a canvas conducted immediately thereafter yielded no results; that two 4 months passed before the complainant saw appellant and concluded she was the perpetrator in an entirely fortuitous encounter at Kings County Hospital as appellant, pregnant, headed towards the Obstetrics Ward; that the complainant did not view a lineup or other police-arranged procedure in the immediate aftermath of appellant’s arrest and hence no such procedure was tested at a Wade hearing; and that the “trial preparation” viewing at issue here occurred some 16 months later in the DA’s office when the prosecutor showed the complainant appellant’s prisoner movement slip photograph, a photograph the complainant had never seen before. In urging that Herner continues to govern and that no Wade hearing was required to assess the suggestiveness of what, by all appearances, was the most suggestive kind of pre-trial identification procedure, the People make several arguments: • First, they argue that Herner’s trial-preparation exception to Wade and its conclusion that such viewings are not “identification procedures” are consistent with this Court’s broader identification law jurisprudence and that the Herner procedures provide adequate protections to defendants even in the absence of a Wade hearing (RB at 33-34, 41-44). • Second, notwithstanding extensive, validated and peer-reviewed social science research establishing the distorting effects of viewings like the one at issue here, the People ask this Court to disregard the published meta-analytic studies cited in Appellant’s Main Brief in evaluating the wisdom of Herner’s trial- preparation exception because the defense did not introduce them at the trial level, where the court was bound to apply Herner anyway. The People also contend that this research has no impact on Herner’s continuing vitality (RB at 37-39, 40-41). 5 • Third, assuming that Herner continues to govern, the People argue that the procedure conducted here – the display of a single photograph that the complainant had never seen before in a case where no other out-of-court identification had been tested at a Wade hearing – falls within Herner’s ambit (RB at 34-36). • Fourth, the People contend that, whether or not the Court elects to retain Herner, the complainant’s confusing and incomplete testimony about the circumstances of the photo viewing so clearly establishes that she made no identification that the defense had no right to call the prosecutor who displayed the photo to flesh out the relevant record and, hence, that no Wade hearing was required (RB at 29-33, 39, 55-60). • Fifth, although the parties and the court agreed in advance that the scope of the Herner hearing would be limited and that the issue of independent source would be reserved for a Wade hearing if the court ordered one, the People now ask that this Court find independent source based upon the record that resulted (RB at 44-49). As we will demonstrate below, each of these claims lacks merit. I. Contrary to the People’s arguments, Herner is out-of-step with the Court’s broader identification-law jurisprudence and it fails to delineate procedures sufficient to protect defendants who have been exposed to suggestive identification procedures (Answering RB at 33-34, 41-44). In their brief, the People summarize Herner and describe some of the lower court cases that have applied it (RB at 34-36), but they make little effort to situate Herner within this Court’s larger body of identification law. Such reticence is hardly surprising because Herner is outside the mainstream of this Court’s jurisprudence. In essence, the People appear to make two relevant claims. First, they argue that trial-preparation identifications need not be scrutinized at Wade 6 hearings because such procedures are not conducted “for the purpose of” establishing the perpetrator’s identity (RB at 34). Second, they contend that Wade hearings are not required in these cases because the witness exposed to a trial- preparation display will have “previously identified the defendant” as the perpetrator (RB at 34). Both claims run afoul of prevailing precedent. The People’s first argument springs from the proposition that prosecutors displaying photographs of the accused to eyewitnesses during trial preparation are not acting for the purpose of establishing a perpetrator’s identity – they think they know that already – but simply to prepare their witness to give effective and persuasive testimony at trial. This Court made clear long ago, however, that Wade hearings to evaluate suggestive pre-trial identification procedures do not seek to deter misconduct by law enforcement officials, but to ensure the reliability of the fact-finding process. People v. Adams, 53 N.Y.2d 241, 250-51 (1983). Because bad faith has thus never been a component of this Court’s Wade analysis, the People’s (and Herner’s) focus on a prosecutor’s “purpose” in displaying a defendant’s photograph is simply inconsistent prevailing identification-law precedents. In arguing otherwise, the People cite language from this Court’s decision in People v. Gissendanner, 48 N.Y.2d 543, 552 (1979) (RB at 34), but Gissendanner does not support a trial-preparation exception to Wade. At issue there were 7 identifications by two police officers, one who knew the defendant before the charged sale even took place and one who viewed the defendant accidentally at the precinct, not as a part of any police-arranged procedure. Id. at 548, 552. The Gissendanner Court concluded that identifications such as these were not “identification procedures” under C.P.L. §710.30 and, hence, statutory notice was not required. Id. at 552. That holding, which is entirely consistent with subsequent case law, affords no justification for exempting from Wade hearing scrutiny the conduct at issue in appellant’s case: a prosecutor’s display of a defendant’s arrest photograph, 1½ years after an incident, to an eyewitness not previously acquainted with the defendant. Indeed, Gissendanner in no way foreshadows Herner or provides any jurisprudential antecedent for its holding. The People’s second Herner justification – that trial preparation identifications do not require Wade hearings because the witness will have previously identified the defendant (RB at 34) – fares no better under this Court’s precedents. This argument boils down to a claim that trial-preparation identifications are “confirmatory,” but this Court has been crystal clear about the kinds of identifications that fall within this narrow category, and trial-preparation viewings are not among them. In People v. Boyer, 6 N.Y.3d 427, 429, 431-32 (2006), this Court, repeatedly emphasizing the clarity of C.P.L. §710.30, squarely held that Wade hearings are unnecessary because of an earlier “confirmatory” 8 identification in only two situations: when witnesses view suspects with whom they are already well-acquainted so that suggestiveness is not conceivably an issue, People v. Rodriguez, 79 N.Y.2d 445 (1992), or when the witness is a trained undercover police officer who views a defendant as part of “the proper completion of an integral arrest procedure.” People v. Wharton, 74 N.Y.2d 921-922-23 (1989). In this case, the complainant’s spontaneous viewing of appellant at Kings County Hospital two months after the incident does not remotely meet the criteria of either Rodriguez or Wharton and, thus, that identification cannot serve as a justification for denying a Wade hearing to assess the display of appellant’s lone photograph for trial preparation purposes 16 months later. Herner may suggest otherwise, but, to the extent that it does, it is outside the mainstream of this Court’s identification case law. The People’s contrary contention (RB at 34) is simply incorrect . People v. Mato, 83 N.Y.2d 406 (1994) illustrates the point. In that case, after the charged sale, the undercover officer, like the complainant here, had a chance encounter with a person he believed to be the perpetrator. In Mato, the chance encounter took place three weeks after the incident; in appellant’s case, it occurred two months after the assault. Like the complainant in this case, the officer in Mato notified the authorities immediately after the spontaneous viewing and the defendant was promptly arrested. In Mato, the officer then viewed the 9 defendant once more, in a police-arranged showup following the arrest. This Court held that a Wade hearing was required to evaluate the showup, notwithstanding the spontaneous identification that had immediately preceded it. Id. at 410-12. If a Wade hearing was necessary to evaluate the showup that immediately followed the spontaneous encounter in Mato, then surely it must be required in this case, where the subsequent photo display took place 16 months later and involved a civilian, not an undercover police officer. The People cite Mato for another proposition (RB at 53), but they do not come to terms with its import. Mato, like Adams, Boyer, Rodriguez and Wharton, demonstrates just how far outside New York’s identification law jurisprudence Herner’s trial-preparation exception lies.1 The People cannot persuasively argue otherwise and, hence, they barely try. Unable to situate Herner in the larger constellation of New York identification law, the People seek to defend it on policy grounds, arguing that it serves to avoid “needless and duplicative Wade hearings” and adequately protects defendants because “Herner does not leave it to the prosecutor to determine if a 1 The People also cite two pre-Herner cases from the District of Columbia Circuit Court of Appeals, one 20 years old and one 40 years old, as being consistent with Herner’s rationale. United States v. Thompson, 27 F.3d 671 (D.C. Cir. 1994); United States v. Marshall, 511 F.2d 1308 (D.C. Cir. 1975). Both cases, however, are distinguishable from appellant’s. Thompson involved trial-preparation viewings by undercover police officers. Thompson, 27 F.3d at 673. The trial-preparation viewing in Marshall involved a witness who was shown the same photograph of the defendant that she had seen and identified before. Marshall, 511 F.2d at 1311. Significantly, in the intervening decades, during which social science research has eroded the underlying trial-preparation rationale, neither the D.C. Circuit nor any other court has cited Thompson again for this proposition. Marshall was cited in Thompson, but it has not been cited since. 10 photographic display during trial preparation needs to be the subject of a Wade hearing” and, in any event, defendants are free to cross-examine eyewitnesses about such viewings at trial (RB at 41-44). Each of these propositions is incorrect. First, experience demonstrates that Herner does not avoid “needless and duplicative” hearings (RB at 41). To the contrary, it merely replaces a Wade hearing, a proceeding with a clearly defined agenda and definite scope, with another, far more amorphous and uncertain one. All the players in the criminal justice system know what happens at a Wade hearing: the court must determine whether an out-of-court identification procedure was unduly suggestive and, if it was, whether there is clear and convincing evidence of independent source to justify the admission of the eyewitness’s in-court identification. People v. Chipp, 75 N.Y.2d 327, 335 (1990). New York’s advocates and judges have been navigating this path for over a generation. But what is the agenda at a so-called Herner hearing? Who bears the burden and what must they show? Herner does not say much on the issue. The “manner” and the “suggestibility” of the display may play a role, but it is not clear what that role is. Herner, 85 N.Y.2d at 879. Ultimately, Herner, along with its lower-court progeny, see cases cited at 33-35 of Appellant’s Main Brief, appears to hold that the relevant question is whether the prosecutor conducted the procedure for purposes of trial preparation. Herner, 85 N.Y.2d at 879. As already noted, see, 11 ante, at pp. 6-7, it is not at all clear why that question ought to a dispositive one under this State’s identification jurisprudence. What is clear, however, is that the precise content or scope of the Herner inquiry remains elusive. Small wonder that the parties cannot now agree who the necessary witnesses at the Herner hearing were or even what the court actually found. As this case plainly demonstrates, Herner has not streamlined the pre-trial process in identification cases. It has simply confused it. The People’s argument that the Herner regime adequately protects defendants because courts, and not prosecutors, are charged with the responsibility of determining whether to conduct a Wade hearing is equally unpersuasive (RB at 41). In support of this claim, the People assert that Herner does “not diminish any obligation of the prosecutor to disclose a photographic display” (RB at 41), but this is misleading. Herner, after all, squarely holds that no C.P.L. §710.30 notice is required when such a viewing is conducted for purposes of trial preparation. Herner, 85 N.Y.2d at 879. C.P.L. §710.30, on the other hand, would require notice if such a photographic procedure were conducted for a purpose other than trial preparation, so long as that photo identification were the only out-of-court identification in the case. Compare People v. Walker, 119 A.D.3d 1402 (4th Dept. 2014) and People v. Nolasco, 70 A.D.3d 972 (2d Dept. 2012) (both requiring 710.30 notice where no other out-of-court identification occurred) with Grajales, 8 12 N.Y.3d 861 (specific notice of pre-trial photo identification not required where C.P.L. §710.30 notice is otherwise given because the authorities also conducted another out-of-court procedure). Hence, the very premise of this prosecution argument is dubious. Even if the People were right about the scope of a prosecutor’s notice obligations, however, it still does not follow that Herner guarantees that a court will be the one to decide whether a Wade hearing will occur in cases involving trial-preparation viewings. The prosecutor in appellant’s case gave prompt notice of his display of appellant’s prisoner movement slip photograph to the complainant, and that was laudable. Herner, however, requires no such thing, and the resulting prosecutorial honor system is hardly reassuring to the defense. In any given case, prosecutors may opt not to provide notice, either out of ignorance, malice or because they sincerely believe that they were acting solely to prepare their witnesses for trial. More, unlike photo identification procedures conducted earlier in the case by police, it is highly unlikely that a trial-preparation display will be memorialized in a DD-5 or other paperwork subject to disclosure as Rosario material. Thus, if a prosecutor fails to disclose that such a viewing has occurred, chances are that neither the defense nor the court will learn of it. Accordingly, the People’s assumption that, under Herner, a trial court will be in a position to secure the defendant’s rights seems overly sanguine. 13 Finally without merit is the People’s notion that cross-examination before the jury will suffice to protect a defendant from suggestive trial-preparation displays (RB at 42-44). First, as just demonstrated, the defense will often be entirely unaware that such a viewing has even occurred, making cross-examination functionally impossible. Second, and more importantly, the very idea that trial cross-examination can substitute for the pre-trial evaluation of an out-of-court identification is a stranger to New York law. Under the federal constitution, out- of-court identifications need not be evaluated at a separate pre-trial hearing, Watkins v. Sowders, 449 U.S. 341 (1981) (noting, however, that such hearings are generally a good idea), but in New York the opposite is true. This is because under our State Constitution, in contrast to its federal counterpart, suggestive out-of-court identifications are per se inadmissible and may never be introduced at trial by the prosecution. Adams, 53 N.Y.2d at 250-51. To secure this right, Article 710 of the Criminal Procedure Law guarantees that such hearings are conducted before the trial in an orderly fashion. People v. Laing, 79 N.Y.2d 166, 169-70 (1992). Herner has placed trial-preparation viewings outside the regime of Article 710 (and that is why we ask the Court to reconsider it), but the People are incorrect to suggest that cross-examination at trial can solve the resulting difficulties.2 2 Chipp, 75 N.Y.2d 327, the sole New York case that the People cite to support their argument (RB at 43) is entirely distinguishable. In that case, the issue was not whether cross-examination 14 II. Contrary to the People’s arguments, this Court can and should consider the overwhelming weight of published social science research in assessing the wisdom and propriety of Herner’s trial preparation exception to Wade (Answering RB at 37-39, 40-41). In appellant’s main brief, we relied upon a significant body of peer- reviewed, validated and widely accepted social science research establishing that pre-trial photo displays such as those justified under Herner’s trial-preparation exception and like the one that occurred in appellant’s case, run a considerable risk of distorting the witness’s memory of the incident and undermining the reliability of any in-court identification. See Appellant’s Main Brief at pp. 35-43. Specifically, this research showed that photo displays such as these constituted the sort of post-event information that altered eyewitness memory of the underlying incident in a manner that caused witnesses to exaggerate the quality of their observations at the time of the crime, their attentiveness during the incident and their certainty that they had identified the right person, whether or not they had, in fact, selected the actual perpetrator. These studies also demonstrated that such displays significantly enhanced the likelihood that the witness would identify the accused on any subsequent viewing, including in court, again whether the witness was correct or not. Appellant pointed out that other respected state high courts had at trial could substitute for pre-trial scrutiny of an out-of-court identification procedure. A Wade hearing there had already occurred. Rather the sole question that Chipp presented was whether the defense had an automatic right to call the complainant at the pre-trial Wade. In rejecting that claim, this Court merely pointed out that the defense would retain the right to question the complainant when she testified at trial. Id. at 338-39. 15 relied heavily on studies such as these in evaluating proposed changes in their own identification jurisprudence. See State v. Lawson, 291 P.3d 673 (Ore. 2012); State v. Henderson, 27 A.3d 872 (N.J. 2012). In their response, the People give short shrift to these studies. They cite none of them. Nor do they address or even cite cases such as Lawson and Henderson that rely extensively on them. Instead, the People argue that the Court should ignore these studies altogether because the defense did not present them at the Herner hearing (RB at 38-39). On the merits, the People acknowledge that this research “may be of interest with regard to improving identification procedures,” but urge this Court to reject it as irrelevant here because “virtually all” of it involves initial identification procedures, which Herner did not (RB at 41, 44). Both of these arguments are unpersuasive. The People’s procedural claim that appellant was obliged to present published social science data supporting reconsideration of Herner to the hearing court is odd on its face because, without question, stare decisis obliged that court to apply Herner. More importantly, this Court frequently examines available published social science research in resolving issues of importance whether or not those studies were presented in the trial court. In People v. Johnson, 95 N.Y.2d 368, 372 n.* (2002), for example, the Court cited social science studies documenting the profound adverse effects of domestic 16 violence on children in resolving a sufficiency-of-the-evidence claim under the endangering the welfare of a child statute. See also People v. Thompson, 83 N.Y.2d 477, 501 (1994) (Bellacosa and Ciparick, dissenting) (relying on an Appendix of empirical data in urging that mandatory minimum sentence in drug case violated the proscription against cruel and unusual punishment); People v. Whidden, 51 N.Y.2d 457, 463 (1980) (Meyer, J., dissenting) (noting the utility of so-called Brandeis briefs3 in assisting the Court in the resolution of claims). Most recently, in People v. Peque, 22 N.Y.3d 168, 189 n. 4 (2013), Judge Abdus- Salaam, writing the controlling decision for the Court, commended the “defendants’ attorneys, the prosecutors and counsel for amicus for their excellent work in bringing a wealth of authorities, research, data and scholarly articles to assist us in our resolution of these appeals.” Indeed, the published studies cited by appellant here are precisely the kind that amicus curiae routinely bring to the Court’s attention. 22 N.Y.C.R.R. §500.23(4)(iii). That such studies have been cited in this case by one of the parties and not by amicus curiae is, of course, no reason for the Court to ignore them. The 3 “Brandeis Brief” refers to the brief prepared by Louis D. Brandeis for the United States Supreme Court in Muller v. Oregon, 208 U.S. 412 (1908). It is considered a pioneering effort that was the first in United States legal history to rely “more on a compilation of scientific information and social science than on legal citations.” It “became a model for future Supreme Court presentations.” See http://en.wikipedia.org/wiki/Brandeis_Brief (last visited April 5, 2015). 17 People would have this Court evaluate Herner’s continuing viability with one hand tied behind its back. There is simply no reason for the Court to do so. The People’s half-hearted efforts to dismiss these studies on the merits because most involve initial identification procedures (RB at 41) also fails to convince. First, that argument ignores that, in this very case, the display of appellant’s prisoner movement slip did constitute the initial identification procedure conducted by the authorities. Indeed, the People concede that there was no prior police arranged procedure in appellant’s case (RB at 35). Hence, even on the People’s understanding of the relevant research, the danger that the complainant would derive critical post-event cues from the single photo display plainly existed. More critically, the People’s arguments misperceive the fundamental import of these studies, which are based on the now widely understood premise that human memory, including the memory of eyewitnesses, is a “constructive, dynamic and selective process.” Henderson, 27 A.3d at 894. The phenomenon of post-event information, which this Court has already deemed generally accepted in the scientific community, People v. LeGrand, 8 N.Y.3d 449, 458 (2007), is predicated on the straightforward notion that “eyewitness testimony about an event often reflects not only what an eyewitness actually saw, but also information that the witness obtained later.” People v. Santiago, 17 N.Y.3d 661, 666 (2011). See 18 also 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”). Contrary to the People’s present claim, nothing in the meta-analytic studies cited by appellant in her main brief, see Appellant’s Main Brief at pp. 37-41, suggests that the deleterious effects of post-event information are limited to an initial post-incident identification procedure. To the contrary: in Lawson, the Oregon Supreme Court, evaluating this research, concluded that “viewing a suspect multiple times throughout the course of an investigation adversely effects the reliability of any identification that follows those viewings.” Lawson, 291 P.3d at 708 (emphasis added). That same court specifically recognized the danger that confirming post-event information can be communicated during “pre-trial witness preparation sessions,” precisely like the one at issue in this case. Id. at 711. The 2014 meta-analysis cited in appellant’s main brief also concludes that eyewitness memory distortion can arise from “reinforcing feedback from pre-trial interaction with prosecutors.” See 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, 16 (http://bit.ly/1aaMu5O) (last visited April 6, 2015). 19 These findings thus bear directly on this Court’s inquiry on whether Herner’s trial preparation exception to Wade retains viability. They also bear directly on the propriety of the prosecutor’s conduct in displaying appellant’s prisoner movement slip so long after the incident and so long after the complainant had seen appellant at the time of her arrest. The People are simply mistaken when they argue otherwise. III. Even were this Court to retain Herner, it should reject the People’s effort to extend it to cases such as this one (Answering RB at 34-36). In appellant’s main brief, we argued that, even if Herner remained viable, it could not reasonably be interpreted to encompass the viewing in appellant’s case. See Appellant’s Main Brief at pp. 45-47. Specifically, we contended that appellant’s case differed from Herner in three critical respects. First, in Herner, the trial preparation viewing involved a photograph of a non-suggestive lineup, rather than a single prisoner movement slip photo. Second, in Herner, unlike here, the trial preparation photograph was of a procedure that the witness had previously viewed. Third, in Herner, but not in this case, the earlier identification procedure had been evaluated and deemed non-suggestive at a Wade hearing. In their response, the People do not deny these incontrovertible facts. They concede, as they must, that no Wade hearing occurred prior to the trial-preparation display in this case (RB at 35). They acknowledge that the photograph at issue did 20 not depict an earlier identification procedure that the complainant had previously viewed (RB at 35). Indeed, they admit that the complainant had never seen the prisoner movement slip photo before (RB at 35). Nonetheless, in an effort to make this case sound more like Herner, the People assert that the complainant had, in essence, seen the prisoner movement photograph before because it was taken on the same day as the complainant’s sighting of appellant at Kings County Hospital and, thus, “merely captured an image of defendant as she appeared on that date” (RB at 35). This strained circumlocution, however, serves only to highlight the differences between Herner and this case. Herner involved a second-viewing of a lineup that the witness had seen before. That lineup had been evaluated by a judge and found to comport with due process. In contrast, it is hard to imagine a procedure more rife with suggestion than the display of a single prisoner movement slip photograph 1½ years after the incident and 16 months after the complainant’s Kings County Hospital observation. If any trial-preparation exception to Wade hearing scrutiny is viable – and the social science research demonstrates why it is not – it is viable solely because the witness in question is viewing an image of an identification procedure that she or he had seen before and that had already been tested and deemed non-suggestive at a Wade hearing. Because none of those factors exist in appellant’s case, the 21 hearing court’s denial of a Wade on trial preparation grounds is infirm, even if Herner itself is not. IV. Contrary to the People’s arguments, the complainant’s confusing and incomplete Herner hearing testimony about the circumstances of the photo display make a Wade hearing more, and not less critical, particularly because, at the People’s behest, the court denied the defense application to call, as a witness, the prosecutor who conducted the procedure and whose account of the viewing, at minimum, seemed in tension with the complainant’s (Answering RB at 29-33, 39, 55-59). In their brief to this Court, the People cite the complainant’s Herner hearing claims that the photograph was blurry, that she did not recognize it and that it did not affect her ability to identify her assailant as basis for upholding the hearing court’s determination that no Wade hearing was required (RB at 29-33, 39). The People further contend that the defense was not entitled to call the prosecutor who actually conducted the procedure to fill in gaps in the complainant’s testimony (RB at 55-59). These arguments lack merit. The complainant provided her Herner hearing testimony more than five months after the display occurred and there were many things about the circumstances of the viewing that she could not recall. More, her account appears to be in tension with the contemporaneous on-the-record disclosure of ADA Shoock, the prosecutor who displayed the photograph. Specifically, the ADA never suggested that he had employed a blurry photograph to resolve the specific questions he had about appellant’s hairstyle or that the complainant had failed to 22 recognize the photograph that he displayed – two matters that he clearly would have been expected to disclose had they occurred. Finally, the People failed even to introduce the photograph at issue in evidence at the Herner hearing, raising further questions about the accuracy of the complainant’s account. The existing record thus does not eliminate the need for a Wade hearing; it accentuates it. At such hearing, the defense should be entitled to call ADA Shoock to fill in the gaps in the complainant’s account. The complainant testified at the Herner hearing that she met with an ADA on January 5, 2010 (A. 85). She thought the meeting lasted five or ten minutes, but she was not sure (A. 88). She could not recall if the ADA asked her to provide a description of her assailant (A. 88). He showed her a picture – though she was not sure he did so that day – but she could not remember where he got the picture from (A. 88). She did not know whether there was a file on the table at which she sat and could not say whether the prosecutor took the photo from a file (A. 89). She did not provide the prosecutor with a description of the assailant’s hairstyle when she looked at the picture and she would have remembered if the prosecutor had asked her about that (A. 90-91). When the ADA asked if she knew the photo, she said she did not, told the prosecutor that it was blurry and merely glanced at it (A. 89-90). She did not know what the ADA said in response, could not recall what the ADA did with the photo and could not remember whether he asked her about it 23 again (A. 89, 91-92). Contrary to the People’s contentions, this incomplete and unilluminating testimony, on its face, fails to justify the hearing court’s decision to deny a Wade hearing. This is particularly the case when the complainant’s account is contrasted with ADA Shoock’s on-the-record statements about the viewing one day after it took place (A. 36-37). ADA Shoock reported that, at their meeting the previous day, the complainant had provided him with both a description of the assailant at the time of the incident and a description of appellant on the day of her arrest (A. 36), facts that the complainant could not recall when she testified at the Herner hearing (A. 88). At the meeting, Shoock reported that he was confused by the complainant’s description of appellant’s hairstyle on the date of her arrest so he inquired about it (A. 36), an inquiry that the complainant expressly denied had occurred (A. 90-91). To clarify the matter, the prosecutor showed the complainant a photograph of appellant taken on the day of her arrest, which he later revealed to be her prisoner movement slip photo (A. 36-37, 45). The prosecutor did not say that he selected a “blurry” photo for the complainant to view and, of course, it would have made no sense for him to do so. Nor does it make any sense that the Department of Correction would employ a blurry photo for a prisoner movement slip, as such a photo could not accomplish its assigned security purpose. Significantly, the People never introduced the 24 photograph itself at the Herner hearing. Whatever the reason for its non- introduction,4 the suggestiveness issue could not properly be resolved without the photograph in evidence and, on that basis alone, the court should have ordered a Wade hearing. A Wade hearing is also required because the prosecutor never indicated that the complainant had been unable to recognize appellant’s picture, either in court when he provided notice of the procedure or in his pre-Herner hearing motion papers. Had the complainant indeed failed to recognize appellant’s photo, then that information would clearly have been exculpatory and been subject to disclosure as Brady5 material. People v. Robinson, 280 A.D.2d 687, 688 (2d Dept. 2001); People v. Quinones, 228 A.D.2d 796, 798 (3d Dept. 1996). The People acknowledge that the complainant’s failure to recognize appellant’s photograph would trigger the prosecutor’s Brady responsibilities, but assert there was no problem in the end because the defense learned of this purported failure at the Herner hearing in time to use that information at trial (RB at 32-33). This argument entirely misses the point. 4 In their brief, the People cite the prosecution’s post-hearing papers indicating that the judge had been shown the photograph “off-the record” (RB at 57) (A. 130-31). The motion papers do not even indicate that defense counsel was present for this off-the-record viewing, but, even if she were, the unintroduced photograph cannot properly be considered in resolving this issue. Significantly, in its Herner decision, the court did not indicate that it had personally viewed the photo and made no factual finding about its actual appearance (A. 134-36). 5 Brady v. Maryland, 373 U.S. 83 (1963) 25 The issue is not whether a Brady violation occurred. Appellant has never made that claim. The issue is whether a prosecutor such as ADA Shoock, who was scrupulous enough to disclose the Herner viewing so promptly, on the day after it happened, would have blithely ignored his Brady obligation to disclose the complainant’s failure to recognize appellant’s photo, both when he appeared in court (A. 36-37) and when he filed papers opposing a Herner hearing two months later (A. 42-52). The defense contends that this is unlikely and, hence that the complainant’s Herner hearing account is probably inaccurate. At minimum, however, the combination of complainant’s vague testimony and ADA Shoock’s in-court and motion practice comments on the same issue raise “substantial issues as to the constitutionality” of the photo display that can only be resolved at a Wade hearing, at which the defense would have the opportunity to call ADA Shoock. Chipp, 75 N.Y.2d at 338; see People v. Barton, 164 A.D.2d 917, 918-919 (2d Dept. 1990); People v. Sokolyanksy, 147 A.D.2d 722, 723 (2d Dept. 1989); People v. Ocasio, 134 A.D.2d 293, 294 (2d Dept. 1987) (recognizing that the defense is not obliged to accept prosecution evidence at “face value” and upholding the defendant’s right to call a witness at a Wade hearing, particularly when the prosecution’s account is “notably incomplete”). Before this Court, the People’s effort to justify the refusal to allow the defense to call ADA Shoock fall flat. Their claim that, in Herner itself, the 26 eyewitness and not the prosecutor testified (RB at 56) is utterly beside the point because there is no indication in that case that there was any tension between the two versions of events. The People’s claim that it did not matter “what the prosecutor had in mind when he displayed the photograph” (RB at 56) is true (although seemingly totally inconsistent with Herner’s trial-preparation rationale), but that argument also misses the mark. After all, the defense did not seek to call ADA Shoock at a Wade hearing to learn about his intent in showing the photo, but to learn what the complainant actually said and did upon viewing the photograph. The prosecutor as the only other participant in that conversation – and one with a professional obligation to accurately recall what occurred – plainly could have provided material information on the critical issue. This Court should thus order a Wade hearing at which the defense would be entitled to call ADA Shoock as a witness. V. The People’s request that the Court uphold appellant’s conviction by finding that the complainant had an independent source for her in-court identification is unpreserved and waived, as well as unreviewable, and would deny appellant a fair opportunity to litigate that issue (Answering RB at 44-49). Ignoring portions of the record and selectively quoting from others, the People urge this Court to uphold appellant’s conviction because the record of the Herner hearing establishes an independent source for the complainant’s in-court identification (RB at 44-49). This position represents a significant about face for 27 the People because in the trial court, before and after the Herner hearing, both sides agreed that the question of independent source was not then at issue and would be resolved later, at a separate proceeding, if the court rejected the People’s trial-preparation arguments and ordered a Wade hearing. In accord with this understanding, the parties did not argue independent source in the post-Herner briefing and neither the hearing court nor the Appellate Term addressed it. The People’s present arguments are thus both unpreserved and waived, as well as unreviewable. Accepting those arguments now would deny the defense a fair opportunity to litigate the independent source issue. At the outset of the Herner hearing, the court clarified the scope of the proceeding to come (A. 61). It would determine whether the prosecutor’s display of the photograph to the complainant was for trial preparation or was an identification procedure (A. 61). If the court concluded that an identification procedure had occurred, it would then order a Wade hearing (A. 61). The prosecutor did not challenge this proposed agenda and, indeed, agreed that “we only have to address the ID procedure” (A. 62-63). He then added the following regarding any prospective future proceedings: I want to make sure that if there is a Wade hearing . . . I want to preserve my right to move the court to bifurcate the Wade hearing and request an independent source hearing in the event that becomes necessary. . . . I don’t 28 want to lose my right to an independent source hearing should it become necessary (A.61) (emphasis added). Precisely the same understanding animated the post-Herner hearing colloquy. At the close of the evidence, when asked by the court to clarify the issues, the prosecutor stated that the question was whether the photo display was “permissible trial prep or an identification procedure” (A.99). The prosecutor added that “we are not at the point” of having a Wade hearing. Both parties then reaffirmed this understanding: DEFENSE COUNSEL: This is our position as well. . . . [T]his hearing is for the sole purpose of determining whether or not . . . [there was an] identification [or] trial preparation. [I]f it is deemed to be [an] ID procedure, then this gets sent to the Wade hearing. THE PROSECUTOR: Yes. THE COURT: All right and I will need both parties to clarify what your positions are on what fact[s] the Court should . . . consider in determining whether it is an ID procedure. (A. 99-100). These portions of the record, which the People ignore in their brief, demonstrate clearly that the prosecutor never asked the court to determine the complainant’s independent source based on the Herner record. To the contrary, the prosecutor advocated a procedure by which the question of independent source would be deferred to a separate Wade hearing that would occur only if the court concluded that such a hearing was required. 29 Nor, contrary to the People’s contentions, did either the hearing court or the Appellate Term decide the independent source question. The People selectively quote the hearing court’s conclusion that the photo display did not “taint an in- court identification of defendant” (A. 136) (RB at 45), but completely ignore the first part of the very same sentence: “In light of the fact that [the complainant] had previously identified defendant at Kings County Hospital” (A. 136). Hence, the hearing court made no independent source determination at all. Rather, it found that the complainant’s prior identification of appellant at the time of her arrest rendered a Wade hearing to evaluate the subsequent photo display unnecessary, an erroneous determination that appellant has addressed elsewhere, see, ante, at pp. 7- 9 and Appellant’s Main Brief at pp. 47-49, and that the People in their brief do not choose to defend. For present purposes though, the court’s “no-taint” conclusion was plainly based upon the complainant’s spontaneous Kings County Hospital point-out and not on a finding of independent source. Similarly, the Appellate Term did not address the independent source issue. The People quote the Court’s conclusion that “the photographic identification would not have tainted [the complainant’s] in-court identification of defendant” (A. 4) (RB at 46), but once again omit the clause that immediately preceded it – “because the victim had previously identified defendant upon defendant’s arrest” (A. 4). That clause reveals that, like the hearing court, the Appellate Term did not 30 address the independent source question, but, rather, relied on the hospital point- out to reach the incorrect conclusion that any ensuing identification was confirmatory and, thus, did not require a Wade hearing. In sum, because the People affirmatively agreed to defer any hearing on independent source until after the Herner proceeding and the court’s ruling in connection with it, their present claims are not only unpreserved, C.P.L. §470.05, they are also waived. People v. Echevarria, 6 N.Y.3d 89, 92 (2005); People v. Tarsia, 50 N.Y.2d 1, 9 (1980). In addition, since independent source was not the basis for the hearing court’s determination, the People’s current argument is also unreviewable. People v. Concepcion, 17 N.Y.3d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 (1998). To address these claims now, when the defense lacked fair notice that they were at issue below, would deny appellant her right to full and fair litigation of the independent source issue. See People v. Giles, 73 N.Y.2d 666, 670-71 (1989) (though relevant testimony was adduced at trial, the Appellate Division erred by employing trial evidence to resolve defendant’s suppression claim because doing so deprived the People of a fair opportunity to litigate); People v. Nieves, 67 N.Y.2d 125, 136 (1986) (though record evidence may have supported conclusion that out-of-court statement was an excited utterance, People’s failure to raise issue below denied defense the opportunity to litigate that claim). 31 CONCLUSION FOR THE REASONS ADVANCED HEREIN AND IN APPELLANT’S MAIN BRIEF, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE CASE REMANDED FOR A WADE HEARING. Respectfully Submitted, SEYMOUR W. JAMES, JR. RICHARD JOSELSON Attorneys for Defendant-Appellant April 9, 2015