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Photo Array Unduly Suggestive—Proof Burdens Explained

The Third Department determined a photo array was unduly suggestive because the nature of defendant’s picture was significantly different from the other photos:

Initially, a pretrial identification that is unduly suggestive violates due process and is therefore inadmissible against the defendant … . In this regard, a photo array is unduly suggestive if it “depicts a unique characteristic which draws the viewer’s attention so as to indicate that the police have selected a particular individual” … . “While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” … . Where suggestiveness is shown, it is the People’s burden to demonstrate the existence of an independent source by clear and convincing evidence … .

Finding that the People met their initial burden to establish that the police conduct was reasonable and their procedure was not unduly suggestive, we turn to defendant’s ultimate burden. … The array depicts six individuals of equivalent age and ethnicity who are reasonably similar in appearance. However, we nonetheless find the array to be unduly suggestive to the extent that defendant’s photo draws the viewer’s immediate attention. Specifically, while the other five photos depict individuals from the shoulders up with the upper portion of their photos consisting of nothing more than a blank, gray background, defendant is shown from the chest up with the top of his head reaching to the very top of the photo. Thus, defendant’s face occupies the space that, in all of the other photos, is bare. In our view, this difference cannot be deemed minor and impermissibly “create[d] a substantial likelihood that the defendant would be singled out for identification” … . Thus, County Court improperly held that the photo array was not unduly suggestive. People v Smith, 2014 NY Slip Op 08268, 3rd Dept 11-26-14

 

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