People v. Kaity Marshall, No. 195 (N.Y. Dec. 17, 2015)

A pre-trial display of a defendant’s photograph to a witness by a prosecutor or police is an identification procedure that requires a Wade hearing to determine if it was unduly suggestive, regardless of the prosecution’s stated purpose for the display.

Summary

The New York Court of Appeals eliminated the “trial preparation” exception to Wade hearings, clarifying that any pre-trial display of a defendant’s likeness to a witness is subject to Wade scrutiny. In People v. Marshall, the court addressed whether a prosecutor’s display of the defendant’s arrest photograph to the complainant, to help the complainant describe the defendant’s hairstyles, constituted an identification procedure, requiring a Wade hearing. The Court held that the display was indeed an identification procedure, rejecting the trial court’s reliance on the trial preparation exception derived from People v. Herner. Despite finding the trial court erred in denying the Wade hearing, the Court affirmed because it found sufficient evidence of an independent source for the in-court identification.

Facts

Kaity Marshall was charged with several offenses arising from an assault on a bus passenger. The complainant saw Marshall two months after the incident and identified her, leading to Marshall’s arrest. Eighteen months later, the day before trial, the prosecutor showed the complainant Marshall’s arrest photograph to help her describe Marshall’s hairstyles. Marshall’s attorney requested a Wade hearing to determine the suggestiveness of the photo display, but the trial court denied it, relying on the trial preparation exception. At trial, the complainant identified Marshall, and the bus driver also identified her. Marshall presented an alibi defense, which was disputed. The trial court found Marshall guilty, and the Appellate Term affirmed, leading to an appeal to the Court of Appeals.

Procedural History

Following the prosecutor showing the arrest photograph to the complainant, Marshall sought a hearing to determine whether the display was an unduly suggestive identification procedure. The trial court held a hearing, but limited its scope based on the trial preparation exception and denied Marshall’s request for a full Wade hearing. Marshall was found guilty at trial, and the Appellate Term affirmed, upholding the trial court’s denial of a Wade hearing. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the trial court erred by denying Marshall’s request for a Wade hearing regarding the prosecutor’s display of the arrest photograph to the complainant, based on a “trial preparation” exception to the hearing requirement.

2. If a Wade hearing was required, whether the court’s error was harmless because of an independent source for the in-court identification.

Holding

1. Yes, because the trial court erred in denying the Wade hearing. The trial preparation exception does not apply, and a hearing should have been held to assess the suggestiveness of the pre-trial photo display.

2. Yes, the error was harmless, because the complainant’s identification of Marshall at the hospital provided an independent source for the in-court identification.

Court’s Reasoning

The Court of Appeals held that the trial court improperly denied the defendant’s request for a Wade hearing, because the pre-trial display of the photograph was an identification procedure. The court recognized the dangers of mistaken eyewitness identifications and the risks associated with suggestive pre-trial identification procedures. The court noted that “the relevant inquiry remains the same: was the observation of defendant unduly suggestive, rendering the subsequent identification unreliable.” The court found the