Kramer Levin Wins Argument on Behalf of The Innocence Project

In October, Kramer Levin, representing The Innocence Project, Inc. as amicus curiae in the New York Court of Appeals, filed a brief arguing that New York should eliminate its “trial preparation” exception, established by People v. Herner, 85 N.Y.2d 877 (1995), to the rule requiring notice and a Wade hearing to test pretrial identification procedures for undue suggestiveness. Specifically, the brief argued that any pretrial identification procedure—regardless of its intended purpose—risks undue suggestiveness undermining the reliability of a later in-court identification, and that the “trial preparation” exception was out of step with New York precedent protecting against admission of in-court identifications tainted by unduly suggestive procedures. In a decision issued December 17, 2015, the New York Court of Appeals accepted our argument, holding that any pretrial identification procedure entitles the defendant to a Wade hearing. Here, in anticipation of her trial testimony, the prosecutor had shown the complainant a photograph of the defendant. The prosecutor said he had done so “in order to aid him in understanding her description of defendant’s hairstyles on the day of the attack and when she was arrested.” Overruling Herner, Judge Rivera explained for a unanimous Court that “[t]he concern that a pre-trial identification will result in witness error is the same regardless of the [prosecutor’s] motive.” A majority of the judges went on to conclude that the lack of a Wade hearing in the defendant’s case was harmless error because there was an independent source for the witness’s in-court identification. Judge Lippman, writing for himself and Judge Stein, dissented from this harmless error analysis, arguing that the issue of independent source was not properly before the Court and, in any event, the record did not support a finding of one. The Court of Appeals decision is People v. Marshall, 2015 N.Y. Slip Op. 09313, 2015 WL 9090609 (Dec. 17, 2015).