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NY Prosecutors Can Now Use Photo Line-Ups As Evidence At Trial

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Juries in New York state are now allowed to consider the photo arrays shown to witnesses as evidence at trial, thanks to a reform tucked into the state budget passed in April.

Governor Cuomo hailed the reform, which went into effect this weekend, as "a fair and effective path to help ensure criminals are caught and justice is served."

Prior to this, state law prohibited prosecutors from introducing photo arrays, showing the faces of suspects alongside other head shots, from being used as evidence. The legislation also called on state criminal justice officials to come up with new guidelines for how investigators should present arrays to witnesses.

The state District Attorneys Association said in a statement that the reform will help protect innocent people accused of crimes, as well as helping to convict the guilty. The Innocence Project's Barry Scheck called it "an important step toward" stopping wrongful convictions.

There is still a lot of room for improvement, according to the Legal Aid Society's director of criminal defense training Peter Mitchell. Mitchell said that the legislation was written over the opposition of the state's public defender community, and gives prosecutors more ammunition to prejudice juries while leaving potential safeguards against misidentification essentially voluntary.

"Some of it we think is a mess right now," Mitchell said. "The defender community in general was not consulted at all on this bill."

Allowing juries to see photo arrays, Mitchell said, leaves them free to speculate about the potential criminal history of the suspect pictured in them, given that they tend to be assembled using mugshots. On the other hand, while the new state guidelines do strongly suggest that investigators perform double-blind--meaning the investigator either does not know who the target of an investigation is--the rules are not mandatory. As a result, identifications made without detectives following the double-blind rules can still be admitted as evidence provided they use a "blinded" technique, wherein witnesses are presented with arrays where a given investigator doesn't know the position of the suspect among the photos.

There is also, Mitchell noted, no requirement that in-person lineups be performed double-blind to prevent investigators from subtly suggesting a suspect to a witness, intentionally or not.

New Jersey, by contrast, requires double-blind photo arrays and lineups as the result of a 2012 state Supreme Court decision, following the reversal of manslaughter and attempted murder convictions that judges found were based on cops misleading witnesses into false identifications. Identifications performed contrary to these rules aren't admissible in court in the state, Mitchell said.

He called the lack of a requirement that officers record their identification sessions another missed opportunity for reform.

"One of the problems with this process is that the witness makes a tentative identification, and then that gets cemented by the police through repetition," he said. "That's a real danger."

The legislation does include language suggesting that interrogation during the investigation of certain serious felony crimes be video-recorded, although this standard too is not fully mandatory.

Presented with Mitchell's concerns and some other followup questions, Governor's Office spokesman Rich Azzopardi accused Gothamist of "like usual," "just going with whoever says the craziest ‎stuff about our policies."

Update 8:45 p.m.:

State Division of Criminal Justice Services spokeswoman Janine Kava sent a statement saying, "The protocol is rooted in evidence-based principles and will help investigators solve crimes and prevent misidentifications that can lead to wrongful arrests and convictions." She noted that the state Bar Association also supported the reforms.

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