The defendant is charged with Robbery, Assault and related charges. On December 29, 2006, a shoplifting incident was reported to security officers of Macy's Department Store. When they attempted to stop the suspect, a small scuffle ensued in which the suspect pushed and punched two Macy's security officers. Those Macy's security officials were Tameka Douglas and Reborn Mullings. It was the identifications by these witnesses that were the subject of a Wade hearing conducted by the Court on May 1, 2008. The People's primary witness at the hearing was Detective Richard Hare, who had been assigned on January 1, 2007, to investigate this incident.

While Detective Hare was a credible and straightforward witness, the identification procedures he conducted were flawed in so many respects that together, they constitute the perfect storm for potential misidentification. As this Court has previously noted in People v. Burrowes, NYLJ, Oct. 25, 2004, at 21, col. 3, almost 40 years ago in its seminal case discussing the critical importance of fair identification procedures the U.S. Supreme Court, in Mapp v. United States, 388 US 218 (1967), noted "the high incidence of miscarriage of justice from mistaken identification." Indeed it has long been axiomatic in the criminal justice system that misidentification is the single greatest source of wrongful convictions, responsible for more wrongful conviction than all other causes combined. See, e.g., Eyewitness Identification Procedures, 22 L. & Hum. Behav. 6 (1998). Dramatic scientific evidence confirming the scope of this problem has been provided by post-conviction DNA exonerations. Since 1992, the Innocence Project, formerly associated with the Benjamin N. Cardozo School of Law, has [*2]secured the release of 218 prisoners, including 16 on death row, by proving a convicted suspect's actual innocence through DNA evidence. In the overwhelming number of those cases, over 77%, the defendants were convicted due to identification testimony. See, www.innocenceproject.com/causes/mistakenid.php.

Mapp, supra, and its immediate progeny were primarily concerned with blatantly suggestive identification procedures. Gilbert v. California, 388 US 263 (1967); Manson v. Brathwaite, 432 US 98 (1977); Simmons v. US, 390 US 377 (1968). As New York developed its own jurisprudence incorporating the concerns and rationale of these Supreme Court decisions, identification procedures were held to be in violation of due process because of police suggestion as to whom the perpetrator was, See, People v. Riley, 70 NY2d 523 (1987), People v. Robert a/k/a Evans, 184 AD2d 597 (2nd Dept. 1992), or when police exhibited a single photograph of the suspect to a witness, People v. Osgood, 89 AD2d 76 (2nd Dept. 1982), or where the suspect was dramatically different in appearance from others in the lineup. People v. Milligan, 309 AD2d 950 (2nd Dept. 2003).

In the past thirty years, there has been an enormous expansion of social science research regarding issues of identification and misidentification. This has lead to a series of suggestions for the modification of identification procedures to improve fairness and accuracy. See generally, Lindsay, Wells, Improving Eyewitness Identifications from Lineups: Simultaneous vs. Sequential Lineup Presentations, 70 J. App. Psych. 556 (1985); Wells, Ferguson & Lindsay, The Tractability of Eyewitness Confidence & Its Implication for Triers of Fact, 6 J. App. Psych., 688 (1981); Loftus, Eyewitness Testimony (Harv. U. Press 1996); Yarmey et. al., Accuracy of Eyewitness Identifications in Showups & Lineups, 20 L. & Hum. Behav. 459 (1998); Wells, Small, et. al., Eyewitness Identification Procedures: Recommendations for Lineups and Photo Spreads, 22 L. & Hum. Behav. 1 (1998).

As in this case, eyewitness testimony is often the only testimony against an accused. It is invariably very dramatic and often highly persuasive when a witness, with certainty and without equivocation, testifies that the defendant is the perpetrator and that the defendant's face was one the witness would never forget. And yet, recent cases as well as social science make clear, certainty is no guarantor of, and appears to be uncorrelated to accuracy. People v. Lee, 96 NY2d 157,162 (2001), People v. Smith, 2 Misc 3d 1007 (S. Ct. NY 2004), Wells, et. al., Eyewitness Identification Procedures: Recommendations for Lineups and Photo Spreads, supra at 14.

Indeed, in the last few years there has been, based on mounting and impressive social science data, renewed examination and concern with fairness and accuracy in what has now become routine identification practice. In addition to issues regarding the fairness of the actual procedures employed, social scientists have also done many peer reviewed studies on non-procedural issues including the accuracy of cross-racial identifications, Brigham, Bennett, Meissner & Mitchell, The Influence of Race on Eyewitness Memory, Handbook of Eyewitness Psychology 257 (2006) (and studies cited therein), and, as discussed below, the effect of mug shot exposure on subsequent lineup performance. See, Brigham & Cairns, The Effect of Mug Shot Inspections on Eyewitness Identification Accuracy, J. of App. Soc. Psychology 18, 16, 1394 (1988); Dysart, Lindsay, Evan & Dupuis, Mug Shot Exposure Prior to Mug Shot Identification: Interference, Transference and Commitment Effects, 86J. of App. Soc. Psychology 6, 1280 (2001); Deffenbacher, Borenstein, Penrod, Mug Shot Exposure Effects: Retroactive Interference, Mug Shot Commitment, Source Confusion and Unconscious Transference, 30 Law & Human Behavior 3, (June 2006). [*3]

This explosion of serious research on the many factors that influence the accuracy of eyewitness identification played a critical role in the decision of People v. Lee, supra by the New York Court of Appeals in 2001, to abandon its previous position and to permit, in appropriate cases, the introduction of expert testimony to assist the trier of fact in evaluating identification testimony.^[FN1]

This Court expresses no opinion as to whether or not an actual misidentification has occurred in this case. At a Wade hearing, the Court is not required to make such a finding: the threshold issue is only whether the police procedures employed in this case were so flawed that the People are unable to meet their initial burden of going forward to demonstrate the legality of the police conduct and the lack of suggestiveness in the identification procedures used. People v. Berrios, 28 NY2d 361 (1974).

The initial identification procedures in this case were conducted by use of the police photo image manager system (PIMS). PIMS is often used by the NYPD in preliminary identification procedures where the suspect's identity is not yet known, and also used to compile photo arrays with specific suspects.

Detective Hare described the basic operation of the PIMS computer. The PIMS system is a database of all persons arrested in New York City and is programmable to conduct searches by name, identifying characteristics and precinct. Information of various kinds can be entered into the computer, which can generate pages of potential suspects who meet the selected characteristics. These various pages are displayed one at a time with six images per page on the computer screen. The person viewing the computer screen can scroll through as many or as few pages as is necessary to attempt to make an identification.

In this case, Detective Hare testified that he received an initial description of the suspect from the security guards involved in the scuffle. The suspect was described as a "large, black male, tall around two hundred pounds, if not more." TR 15.^[FN2] On January 3, 2007, Detective Hare contacted Ms. Douglas and Mr. Mullings and asked them to come to the precinct to view pictures on the photo manager system. Detective Hare indicated that the description he entered, though he could not remember precisely, was "guided by the complaint report which was 6'3" and 285 pounds." TR 17. He testified he "probably put in somewhere between 6 foot and 300 pounds. 6 foot, rather and 200-300 hundred pounds. But I don't know exactly at this time what I put in." TR 17. Detective Hare also testified that as to age, he "probably put in anywhere around 21 to 35." TR 17. As he acknowledged, Detective Hare did not memorialize what specific characteristics he actually entered into the machine, nor did he save a copy of the entry, nor print out a copy of what characteristics he had entered in the machine.

The two eyewitnesses were each placed at computer screens at separate desks right next to one another; each desk abutting the other.

Detective Hare indicated that PIMS shows groups of six photos and that he instructed the witnesses to click "Next" to bring up the next six. While Detective Hare indicated that Ms. [*4]Douglas looked at the machine "about 20 minutes," (TR 23) he had no idea how many pages she had looked at (TR 19), nor had he obtained any record from the computer of how many screen pages Ms. Douglas had looked at before making an identification. Detective Hare testified that at some point, Ms. Douglas, with Mr. Mullings seated right next to her, indicated aloud that she identified one of the pictures on the screen as the right person. Since Detective Hare indicated that he was some distance from Ms. Douglas when he heard her announce her recognition, it is safe to assume that Mr. Mullings, who was seated right next to her, was also able to hear Ms. Douglas declare that she had identified someone.

Detective Hare then clicked on the photograph that Ms. Douglas selected as the perpetrator and printed out a full-page copy of just this individual's face. TR 19. While able to do so, Detective Hare did not print out the screen that contained all six photos of the array in which the defendant appeared. TR 19. This error was compounded when Detective Hare printed out a large single photograph of the person whom Ms. Douglas had identified and beneath the defendant's blown-up photograph was information regarding a previous arrest of the defendant and his New York State identification number.

While Ms. Douglas was viewing pictures on the photo manager, Mr. Mullings, who was seated next to her, was doing the same on a separate computer screen. Mr. Mullings was unable to identify anyone on the photo manager system. TR 23. No record was maintained as to how many pages or which pages Mr. Mullings viewed before he stopped using the machine. Such a record would reveal whether or not Mr. Mullings viewed the same page as Ms. Douglas from which she identified the defendant and he did not.

Detective Hare took the picture that Ms. Douglas had selected and re-entered it into the computer and programmed the computer to search for similar candidates. The computer then placed the suspect and the five fillers in random order and generated a photo array. Having been unable to identify anyone on the photo managing system, Mr. Mullings was then shown this photo array and he identified the defendant as the suspect. It is unclear if Mr. Mullings saw the person Ms. Douglas had picked while they were seated next to each other at the photo manager machine. It was established that Mullings, before he viewed the photo array, knew that Douglas had made a selection.

Within half an hour of her selection of the defendant on the photo manager screen, Ms. Douglas was shown the same photo array that had been shown to Mr. Mullings. Ms. Douglas identified the defendant in the photo array. This was the same photo of the defendant she had picked out a half hour earlier on PIMS and the same picture with the defendant's arrest number and previous arrest date that Detective Hare printed out and had her sign.

On March 29th a lineup was conducted. That corporeal lineup was conducted as a double-blind lineup, with two officers from another precinct running it. The defendant's attorney was present and had no objection to the lineup. The corporeal lineup was a fair one, properly conducted. At that corporeal lineup Ms. Douglas picked the defendant; Mr. Mullings picked a different person whom he indicated "looked like the guy." The only witness the People intend to present at trial to make an identification is Tameka Douglas.

Since the People will not be seeking to have Mr. Mullings make an in-court identification, the Court need not address all the problems involved in the identification procedures employed with him. The issue of his possibly tainted identification has been rendered moot.

Ms. Douglas will be called to make an in-court identification and consequently, the [*5]sequence of events concerning her identification must be addressed. Since evidence of the description entered into the PIMS computer was not preserved, it is difficult to assess the quality of the array in which the defendant appeared. There is no evidence to show how many pages the witness viewed before arriving at the array in which the defendant appeared. While evidence of the other arrays might be helpful in analyzing the suggestiveness or lack thereof of the page in which the defendant appeared, production of all the photos viewed in a voluminous array may be burdensome and impractical. It is well established in New York that the People are not obliged to produce all the mug shots when an eyewitness has viewed a "voluminous array". People v. Ludwigsen, 128 AD2d 810 (2nd Dept. 1987), People v. Jerome, 111 AD2d 874 (2nd Dept. 1985). However in this case, Detective Hare was unable to testify to the number of photos the witness had viewed. The number of pages of photos viewed, if not the actual pages themselves, could easily be recorded. It is neither impractical nor burdensome to simply record the tally of pages viewed; a task performed automatically by computers. Without such evidence, there is no support to suggest that the witness viewed such a large volume of photos that the sheer number would militate against a finding of suggestiveness. People v. Jerome, supra.

Of course, a reasonable array could exist on the very first page, should defendant have appeared in it. But the array in which the defendant did appear was not preserved, though it would have been a simple matter to do so. The failure to preserve the array gives rise to an inference that the photo array was suggestive. People v. Stokes, 139 AD2d 785 (2nd Dept. 1988), People v. Johnson, 106 AD2d 469 (2nd Dept. 1984); In re Shakira, 4 Misc 3d 1017(a), (NY Fam. Ct. 2004). In the face of such an adverse inference, along with the evidentiary uncertainty as to the identifying information entered into the computer, the People have failed to meet their initial burden of going forward to show that there was no undue suggestiveness in the photo identification procedures employed.

This Court is next called upon to determine whether the non-suggestive lineup identification conducted almost three months after the suggestive photo identification is admissible in court because it was sufficiently attenuated from the flawed photo identification procedures.

This incident occurred on December 29, 2006. The suggestive photo identification of the defendant by Ms. Douglas occurred on January 3, 2007. On March 29, 2007, a non-suggestive corporeal lineup was held in which Ms. Douglas selected the defendant. Despite the substantial social science literature that concludes that commitment to an earlier identification has a significant impact on subsequent identification, see Brigham & Cairns, The Effect of Mug Shot Inspections on Eyewitness Identification Accuracy, J. of App. Soc. Psychology 18, 16, 1394 (1988); Dysart, Lindsay, Evan & Dupuis, Mug Shot Exposure Prior to Mug Shot Identification: Interference, Transference and Commitment Effects, 86 J. of App. Psychology 6, 1280 (2001) ; Deffenbacher, Borenstein, Penrod, Mug Shot Exposure Effects: Retroactive Interference, Mug Shot Commitment, Source Confusion and Unconscious Transference, 30 Law & Human Behavior 3, (June 2006),^[FN3] the courts of New York have repeatedly held that the passage of time [*6]attenuates a suggestive photographic identification. See, People v. Johnson, 106 AD2d 649 (2nd Dept. 1984), (lineup identification conducted two months later sufficiently attenuated); People v, Smith, 140 AD2 647 (2nd Dept. 1988), (lineup held two months later sufficiently attenuated in time to nullify any taint); People v. Wedgeworth, 156 AD2d 529 (2nd Dept. 1989), (lineup four months later sufficiently attenuated to remove any taint from possible suggestive photograph array); People v. Watts, 130 AD2d 695 (2nd Dept. 1987), (lineup held two months after tainted photograph identification sufficiently attenuated.)

While this Court is constrained to follow this authority and permit evidence of the corporeal lineup, it must also note that the courts, in deciding that a period of two to four months is sufficient to attenuate an unduly suggestive photographic identification, fail to explain or justify by legal or scientific evidence, the basis for this conclusion. This instinctive conclusion seems contradicted by current research. As social science research in this area continues, a day may come when a judicially created folklore theory of attenuation may be sufficiently rebutted by scientific research to warrant reconsideration of the application of the concept of attenuation. [*7]

This constitutes the Decision and Order of the Court.

_________________________________

Gustin L. Reichbach

J.S.C.

August 20, 2008

Date