We are very happy to that Judge Troy Webber has recently ordered a double-blind/sequential lineup in an attempted murder case. Over the objections of the Bronx District Attorney’s Office, Judge Webber directed that the NYPD must use this more accurate testing procedure with a new witness who has come forward 10 months after the defendant’s arrest. Since the lineup procedures are post-indictment, they can only be performed with the permission of the Court.
There has been a lot of research and decisions about the double-blind/sequential technique. In a nutshell, the system tries to remove the problems with the traditional lineups. Psychological studies show that witnesses are more likely to make mistaken identifications with traditional lineup because they average out the subjects and identify the individual who looks most like the assailant — whether or not the perpetrator is actually in the line up. With double-blind/sequential lineups, there are two safeguards. First, the officer conducting the procedure does not know who the suspect is. That way, there is no chance of the officer suggesting either overtly or subconsciously who should be picked. Second, the individuals in the lineup are show to the viewer one at a time. This process avoids the eyewitnesses averaging the group and picking the individual who looks most like the assailant.
The Chief Judge Lippman’s Justice Task Force recently recommended to the New York legislature that the double-blind/sequential lineups be the law of the land in New York. For some reason, it seems that the Bronx District Attorney’s Office has not gotten the memo. There are also some judges who have not as well because they consider it to be an impermissible intrusion on the functions of the executive (district attorney) and legislative branches of government. Judge Webber knows better. She understands that the law is a dynamic process with appellate courts and other branches of government as a check on her actions. But she also knows that the pursuit of equal and fair justice is the bedrock on which the system must function. With the mountain of studies showing that double-blind/sequential lineups should be standard operating procedure in all cases, that they avoid the innocent being mistakenly identified, it is good to see that Judge Webber has pushed forward to require this technique where she has the ability to do so.
The full text of her decision appears below.
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The People of the State of New York, Plaintiff v. Ashley Reynoso, Defendant, 3379/11
Supreme Court, Bronx County, Part H92
Justice Troy Webber
Decided: September 24, 2012
For the People: Marc I. Eida, Assistant District Attorney, Office of the District Attorney Bronx County.
For the Defendant, Ashley Reynoso: Alice Meehan, Esq., The Bronx Defenders, Bronx, NY.
DECISION AND ORDER
Sometime in July 2012, the People notified the defendant that they would be seeking an order directing the defendant to appear in a lineup conducted by the New York City Police Department. Defendant, by Notice of Motion dated July 16, 2012, while not opposing the lineup procedure, moves for an order directing that should the People proceed with the lineup, they utilize a double-blind/ sequential lineup, or in the alternative, that this Court grant a Frye hearing on the matter. The People submitted an answering affirmation on August 31, 2012 opposing the motion imposing conditions on the lineup and opposing conducting a hearing thereon.Preliminarily, defendant is charged by indictment, inter alia, with Attempted Murder in the Second Degree (PL §110/125.25[1]). It appears that the defendant was initially arrested on misdemeanor charges. Following her arrest, the instant charges were added and it is now alleged that on or about September 25, 2011, she, acting in concert with co-defendants Hondina Diaz and Lawrence Sanchez, did attempt to cause the death of Jorg Castro, by shooting him with a loaded firearm. As stated above, in July 2012, the People stated that they are now aware of another witness to the alleged incident, whom they wish to view a lineup. The defendant, while not opposing the lineup opposes a traditional lineup. She argues that such an identification would be inherently suggestive as ten months have passed since the defendant’s arrest, as well as multiple identification procedures having been conducted. Given this, she argues that only a doubleblind/ sequential lineup would ensure an accurate identification.
Double-Blind/Sequential Lineup
In support of her motion, defendant argues that double-blind/ sequential lineups produce a significantly lower rate of mistaken identifications and are therefore more reliable than the traditional simultaneous lineup procedure. The People argue that a court order compelling the use of a double-blind/ sequential lineup would be an impermissible intrusion into the province of the Executive and Legislative branches. The People also argue that there is no evidence that a sequential corporeal lineup procedure is more reliable than the simultaneous corporeal lineup.
This Court previously addressed this issue in People v. Agyakwa, Sup Ct, Bronx County, October 3, 2007, Webber, J., indictment No. 4566/2006. This Court held that trial courts do have the authority to order a particular type of lineup procedure. There continues to be a split of authority among the lower courts concerning this issue. Several courts have held that the trial courts lack authority to issue an order compelling the People to employ a particular lineup procedure (see e.g., Matter of Walthour, 18 Misc3d 1144(A), 2008 NY Slip Op 50439U [Sup Ct, Kings County 2008]; People v. Santiago, 2004 NY Slip Op 50015(U) [Sup Ct, New York County, Jan. 21, 2004]; People v. Aspinall, 194 Misc2d 630 [Sup Ct, Richmond County 2003] ( cited by the People); People v. Alcime, 2002 NY Slip Op 40021(U) [Sup Ct, Kings County, Feb. 7, 2002]; People v. Martinez and Ogera, 2001 NY Slip Op 50130(U) [Sup Ct, New York County, Nov. 28, 2001]; People v. Franco, NYLJ, July 5, 2001, at 20, col. 5 [Sup Ct, Bronx County, Barrett, J.]; and People v. M.A., 194 Misc2d 449 [Crim Ct, New York County 2002]).
Those courts have reasoned that a court order directing that the police hold a double-blind and/or sequential lineup would be an inappropriate exercise of judicial authority and would run afoul of the doctrine of separation of powers. Furthermore, these courts have held that the court’s role is limited to review of the identification procedure for constitutionality and suppression of the evidence and its fruits, if the identification procedure is found to be unduly suggestive (see e.g., People v. Santiago, 2004 NY Slip Op 50015(U); People v. Aspinall, 194 Misc2d at 631).
Other courts have held that the trial courts do have the authority to order a specific type of lineup procedure (People v. Flowers, 35 Misc. 3d 324 [County Court, Monroe County 2012]; People v. Hammonds, 1 Misc3d 880 [Sup Ct, Westchester County 2003]; People v. Wilson, 191 Misc2d 224 [Sup Ct, Kings County 2002]; Matter of Thomas, 189 Misc2d 487 [Sup Ct, Kings County 2001](cited by the defendant); and People v. Kirby, 2002 NY Slip Op 50730(U) [Sup Ct, Kings County, Oct. 10, 2002]).
These courts note that a court has the inherent authority to control the content of its orders including the procedure or method by which the order is carried out. An analogy can be made to the situation where a court issues an order to obtain a blood sample from the defendant. As the Court of Appeals stated in Matter of Abe A., 56 NY2d at 291, when authorizing an order to obtain the defendant’s blood sample, the issuing court must consider whether the method by which the authorized intrusion is to be accomplished is safe, reliable and imposes no more physical discomfort than is reasonably necessary. The court in Matter of Thomas, interpreted this phrase as authorizing consideration of the reliability of a requested procedure (189 Misc2d at 492). In People v. Kirby, the court reasoned that “the doctrine of separation of powers does not require courts to turn a blind eye to the social science research and wait passively for the legislature or the police to decide to adopt new procedures that enhance the fairness of judicial proceedings, but may rule upon the propriety of and necessity for such procedures as the issues are raised” (Kirby at 2002 NY Slip Op 50730(U)).
There continues to be no Appellate Court decisions directly addressing whether a trial court has the authority to order a double-blind / sequential lineup. In People v. Johnson, 10 NY3d 875 [2008], the Court of Appeals specifically refused to express an opinion. The Court stated, “even assuming the trial court was authorized to impose the conditions on the lineup as requested by the defendant, she (the trial judge) did not abuse her discretion when she denied the defendant’s application (Johnson at 878).
As this Court stated in Agyakwa, as the People are requesting that the Court issue an order directing or authorizing a particular procedure, i.e., a lineup, it seems incongruous that the Courtcannot direct a less suggestive procedure by which the lineup is carried out, but rather, must wait until the completion of the lineup and then determine whether it was or was not conducted within constitutional bounds.
There continues to be insufficient evidence that sequential lineups are more reliable than traditional simultaneous lineups and no general consensus within the scientific community that sequential lineups are superior to traditional lineups. Moreover, simultaneous lineups have been uniformly held to be reasonable and to conform to constitutional requirements (see People v. Chipp, 75 NY2d 327 [1990], cert. denied, 498 US 833 [1990]).
As noted previously, however, there is a consensus as to the benefits of double-blind lineups (Hammonds at 885). There appears to be little, if any, disagreement regarding the benefit of the double-blind procedure including the conclusion that they eliminate a potential source of suggestiveness (Kirby at 2002 NY Slip Op 50730(U); see e.g., Mark R. Phillips, et al., Doubleblind Photoarray Administration as a Safeguard Against Investigator Bias, 84 J. Applied Psychol. 940 [1999]; Law and Human Behavior, Vol. 22, No. 6, 1998; “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” by Gary L. Wells, Mark Small, et. al.; Perrotta, Hynes Endorses Double-Blind Police Line-Ups, NYLJ, Dec. 13, 2002, at 1, col. 3). Given this, this Court directs that a double-blind lineup be conducted.
Based upon the aforesaid, the People’s application for a lineup is granted. Balancing all of the above considerations, the defendant’s motion that a double-blind lineup be conducted is similarly granted.
This opinion constitutes the decision and order of the Court.
