Kramer Levin Files Amicus Brief in Case Involving Eyewitness Identification

Kramer Levin, representing The Innocence Project, Inc. as amicus curiae in the New York Court of Appeals, filed a brief addressing two significant issues relating to eyewitness identifications in criminal cases. The brief argues, first, that New York should eliminate its “trial preparation” exception to the rule requiring notice and a Wade hearing to test pretrial identification procedures for undue suggestiveness. Pursuant to this exception, see People v. Herner, 85 N.Y.2d 877 (1995), potentially suggestive conduct – here, sixteen months after the alleged crime, the prosecutor showed the witness a New York Police Department “prisoner movement slip” photograph of the defendant – is deemed permissible “trial preparation” not subject to notice and a hearing. Second, we argue that New York should adopt a rule barring the introduction of first time in-court eyewitness identifications (that is, in-court identifications not preceded by a lineup, photo array or other formal pretrial identification procedure) absent a showing of “good reason.” The Kramer Levin team consisted of Litigation partner David S. Frankel, associates Sarah C. White and Lynda Tricarico, law clerk Shaked Sivan and paralegal Laurie Baldinger. The case is People v. Marshall, 2014 NY Slip Op 50215(U), appeal docketed, APL-2014-00196. Argument is scheduled for November 17, 2015.