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People v. Marte

June 11, 2009


The opinion of the court was delivered by: Smith, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

We held in People v Adams (53 NY2d 241 [1981]) that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of State constitutional law. We hold today that no similar per se rule applies to an identification in which the police are not involved. While suggestiveness originating with private citizens can create a risk of misidentification, that risk does not justify an automatic, constitutional rule of exclusion.


The victim, whom we will call Peter L., was robbed and shot in the chest near his home. In the months following the robbery, he looked at hundreds of photographs shown him by the police, not including defendant's. He did not identify any of the men pictured as his attacker, and eventually he gave up the effort, telling a police officer that he did not think he would be able to pick anyone out.

Peter's 14-year-old sister, whom we will call Margaret, had known defendant in junior high school. Some six months after the crime, defendant and Margaret met again at Margaret's home, and defendant told her, "I actually shot someone on this block." Margaret, who had been violating family rules by meeting defendant, kept silent for some weeks, but then (according to her testimony) told Peter that she thought she knew who shot him, and showed him defendant's picture. Peter first rejected the suggestion, then reconsidered, took the picture from Margaret, and decided that the person pictured was his attacker. Margaret reinforced this idea in a letter to her brother, quoting defendant's admission and describing defendant as "[t]he kid that everyone thinks shot you."

At this point, Peter and Margaret went to the police, who arranged a lineup, from which Peter selected defendant. At trial, Peter again identified defendant as his attacker. Defendant's pre-trial motion to suppress identification testimony was denied, and defendant was convicted of robbery and assault. The Appellate Division affirmed, and a Judge of this Court granted leave to appeal. We now affirm.


In United States v Wade (388 US 218, 236-237 [1967]), the United States Supreme Court held that a post-indictment lineup is "a critical stage of the prosecution," at which a defendant is entitled to counsel. In so holding, the Court remarked that "[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification" (id. at 228). The Supreme Court later declined to hold, however, that the federal Due Process Clause compels the exclusion of all pretrial identification evidence resulting from an unnecessarily suggestive police-arranged procedure (Manson v Brathwaite, 432 US 98 [1977]). The Court concluded that the admissibility of such evidence should depend on its reliability, judged according to "the totality of the circumstances" (id. at 110, 114).

We have interpreted the Due Process Clause of the New York Constitution differently. In Adams, we adopted a "rule excluding improper showups and evidence derived therefrom," while allowing in-court identifications "based on an independent source" (53 NY2d at 250-251). Adams, like most other cases imposing constitutional limits on identification procedures, involved suggestiveness originating with law enforcement officers; Adams refers specifically to "suggestive identification procedures employed by the police" (53 NY2d at 251). Defendant here argues, however, that the rule of Adams should apply even where the source of suggestion is a private citizen.

Defendant says that this broadening of Adams is justified because the exclusionary rule applicable to suggestive identifications -- unlike the rule applicable to coerced confessions, or evidence obtained in an unlawful search -- is designed not just to deter police misconduct, but to advance the search for truth -- "to reduce the risk," as we said in Adams "that the wrong person will be convicted" (53 NY2d at 251). Since a private citizen's suggestion can have the same tendency to produce wrongful convictions as a police officer's, defendant argues that the resulting evidence should be suppressed in both cases.

We reject this argument. It is true that the rule of Adams is designed to enhance the truth finding process, and to prevent wrongful convictions. It does so, however, largely through its effect on police procedures: the knowledge that evidence resulting from unnecessarily suggestive identifications will be suppressed leads the police to avoid such suggestiveness, and to conduct careful and fair lineups whenever they can. As we said in People v Logan (25 NY2d 184 [1969]), "The exclusionary rules were fashioned to deter improper conduct on the part of law enforcement officials which might lead to mistaken identifications" (id. at 193 [citation omitted]). While the New York rule is different from the one adopted by the Supreme Court in Manson v Brathwaite, the rules have an important purpose in common: to assure that "[t]he police will guard against unnecessarily suggestive procedures... for fear that their actions will lead to the exclusion of identifications as unreliable" (432 US at 112 [footnote omitted]).

In other words, the primary goal of Adams is not to keep evidence of flawed identifications from the factfinder, but to assure, to the extent possible, that the identifications are not flawed in the first place. This goal cannot be advanced by extending the rule of Adams to cases like this one. The family, friends and acquaintances of crime victims, unlike police officers, are highly unlikely to regulate their conduct according to rules laid down by courts for the suppression of evidence. No imaginable rule of law could have discouraged Margaret from showing Peter defendant's photograph, or from telling him her reason for doing so. A per se rule prohibiting the use of evidence that results from such private communications would deny much valuable information to the factfinder, without any corresponding gain in the fairness of the means used to identify alleged criminals.

No authority in our Court, and none in the United States Supreme Court, gives any support to defendant's theory that rules authorizing suppression of eyewitness evidence tainted by suggestion should be applied when the suggestion did not come from law enforcement. Defendants rely, however, on several federal Court of Appeals cases: Raheem v Kelly (257 F3d 122 [2d Cir 2001]), Dunnigan v Keane (137 F3d 117 [2d Cir 1998]), United States v Bouthot (878 F2d 1506 [1st Cir 1989]), Thigpen v Cory (804 F2d 893 [6th Cir 1986]) and Green v Loggins (614 F2d 219 [9th Cir 1980]). We are not bound by these decisions, and need not decide whether we think them correct; none of them goes as far as defendant would have us go here.

In all these cases except Dunnigan, the suggestive identifications were the result of the actions of police or prosecutors. The suggestiveness was not the fault of the law enforcement officials, but the courts held that that did not immunize the identifications from scrutiny under the federal "totality of the circumstances" rule. (In Bouthot, the court emphasized the flexibility of the federal rule -- in contrast to a "per se rule" like the rule of Adams -- in justifying its holding [878 F2d at 1516].) In Dunnigan, the source of the suggestion was a private citizen, but he was a bank security ...

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