The People move by order to show cause to require Derrick Walthour to participate in a double blind simultaneous corporeal lineup. They argue that there is probable cause to believe that he committed the crimes of robbery and sodomy and that his appearance in a lineup is necessary and material to their investigation. The existence of probable cause is based on allegations that Walthour approached an individual on March 3, 2007, at approximately 7:16 P.M., demanded property and took money from the individual while simulating the possession of a weapon. He is further alleged to have forcibly committed oral and anal sodomy upon the same individual. That individual, the complainant, viewed a number of photographs and identified Walthour as the perpetrator of the crimes.

Walthour, who is incarcerated on an unrelated matter, does not move to block his appearance in a court ordered lineup and thereby concedes that the facts presented by the prosecution furnish the requisite probable cause to compel his participation. He does, however, move to modify the court's order by having the lineup conducted in a double blind sequential fashion rather than in the traditional simultaneous manner. ^[FN1] He also submits for court approval a detailed outline of conditions and instructions under which the lineup should be conducted. Walthour claims that the court has the authority to select among alternative lineup methods and [*2]prescribe the most reliable identification procedure. Furthermore, he contends that present scholarly social science research overwhelmingly demonstrates that a double blind sequential lineup increases the accuracy and fairness of the identification procedure while reducing the inherent suggestiveness of the traditional lineup without posing any additional burden on law enforcement.

The People argue as a threshold matter that an order directing a double blind sequential lineup constitutes an inappropriate exercise of judicial authority because the separation of powers doctrine prohibits a court from interfering with the discretion of the District Attorney's Office to control its own investigation. They further contend that the simultaneous lineup has repeatedly been held to be constitutional. They also argue that the studies pointing to the benefits of sequential lineups are not only inconclusive but are also undermined by their academic nature that insulates them from the variables of the real world where identification procedures are actually administered. They also insist that were sequential lineups to be adopted as a matter of course law enforcement agencies would incur significant if not prohibitive costs.

Upon considering the extensive papers that have been submitted and after hearing oral argument, the court grants the People's application to compel Walthour to participate in a simultaneous double blind lineup and rejects Walthour's request for a sequential double blind lineup to be conducted in its place.

ANALYSIS

A fundamental principle of the American constitutional system is that governmental power is divided among three departments-the legislative, the executive, and the judicial-and that each is separate from the other.

The validity of this doctrine does not depend on the branches of government being hermetically sealed off from one another. The different branches must remain partially intertwined if for no other reason than to maintain an effective system of checks and balances, as well as an effective government. The doctrine serves mainly to ensure that the fundamental functions of each branch remain inviolate.

The separation of powers doctrine is grounded in flexibility and practicality, and rarely will offer a definitive boundary beyond which one branch may not tread. The question to be asked is not whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another.

At issue in this case is whether the court would be violating the separation of powers doctrine by imposing lineup requirements upon the prosecutor and police.

The District Attorney enjoys broad discretion and wide latitude in conducting investigations and in prosecuting an accused. ( People v DiFalco, 44 NY2d 482, 486 [1978]; People v Muka, 72 AD2d 649, 650 [4th Dept 1979]; People v Harding, 44 AD2d 800, 801 [1st Dept 1974]). In like manner, the New York Police Department is statutorily mandated to detect and arrest criminal offenders (See New York City Charter §435). It is a basic tenet of the separation of powers doctrine that the judicial branch will not review the discretionary authority of the executive branch absent some indicia of illegality. "Indeed, respect for the basic separation of powers lodged in the executive, legislative and judicial branches of government compels this court not to interfere with the prosecutor's authority." (People ex rel. Doe v [*3]Beaudoin, 102 AD2d 359, 365 [3d Dept 1984]; People v Murray, 129 AD2d 319, 321[1st Dept 1987], aff'd sub nom. People v Robles, 72 NY2d 689 [1988]).

In Illinois v Lafayette, 462 U.S. 640 [1983], the United States Supreme Court upheld the validity of a station house inventory search of an individual who challenged the warrantless search of the bag that she carried. The Court declined to second-guess the police and saw no need to order them to use "less intrusive" means to reach the same end (Id.). The Court held that its role was "to assure against violations of the Constitution" and not to dictate administrative procedure (Id.). "The reasonableness of any particular governmental activity does not necessarily turn on the existence of less intrusive means" (Id.).

The simultaneous lineup procedure has been uniformly held to be reasonable and to conform to constitutional requirements (see People v Chipp, 75 NY2d 327, 335 [1990]). In this case the defendant is seeking to have this court impose what the defendant believes, based on findings of behavioral psychologists, is a fairer lineup procedure. This would require the court to impose, at the risk of violating the separation of powers doctrine, one form of lineup to replace another form that every appellate court in the land has accepted as constitutionally valid ["[c]orporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure (Id.)]. This court need not take such a step. Such restraint is especially appropriate, here, where the variable of suggestiveness has been minimized by the District Attorney's policy of administering the simultaneous lineup in a double blind manner.

"[I]n the final analysis, the lineup is a law enforcement tool. Law enforcement has the right to run the lineup as they chose, subject, of course, to the requirement that if in their zeal they breach canons of due process by an unduly suggestive lineup, then their efforts will avail them nought." (United States v Crouch, 478 F. Supp. 867, 870 [US Dist Ct, ED Cal 1979]). This court is therefore not in a position to exercise supervisory authority over law enforcement officials, but rather must limit its oversight to a retrospective review to ensure that the constitution has not been breeched (see People v Aspinall, 194 Misc. 630 [Sup Ct, Richmond Co 2003]; People v. M.A., 194 Misc 2d 449 (Crim. Ct. NY Co. 2002); People v Martinez, __Misc.2d__,2001 WL 1789315 [Sup Ct. NY Co 2001]; People v Franco, __Misc.2d__, NYLJ, July 5, 2001, p.20, col.5 [Sup Ct, Bronx Co 2001]).

While the court need not directly address the strengths and weakness of the competing social science studies presented by both sides, it must be noted that were the sequential lineup overwhelmingly superior as claimed, the imbalance that would become apparent between the two lineup procedures would bring the effectiveness and possibly the fairness of the simultaneous lineup into a different focus. That has not come to pass. Rather, the only conclusion to be drawn from the body of data presented at this point is that the relative practical benefits of the sequential corporeal lineup are inconclusive and certainly not significant enough to warrant upending criminal investigations.

As defense counsel noted in oral argument, sequential lineups are designed to avoid the comparative judgments by which witnesses might be inclined to select the "best suspect" from a simultaneous lineup. What was professed to have been a settled finding in laboratory studies involving contrived situations and mostly college-age subjects was undermined by efforts to move the academic study from the laboratory to the field. The Illinois Eyewitness Identification [*4]Field Study was a long awaited large scale field study that had been expected to confirm most academic studies and put any remaining controversy to rest. Instead it appeared to contradict laboratory predictions and was undermined by methodology inconsistencies (see Schacter et.al., Policy Forum: Studying Eyewitness Investigations in the Field, Law & Human Behavior 2007).

Accordingly, the People's order placing Derrick Walthour in a simultaneous corporeal lineup is granted without modification.

This decision shall constitute the order of the court.

E N T E R:

___________________

Sheryl L. Parker

J.S.C.