People v. Whitmore, 28 N.Y.2d 826 (1971)

Where a pretrial identification procedure is suggestive, the prosecution must prove by clear and convincing evidence that the in-court identification is based on independent recollection and not influenced by the prior suggestive procedure.

Summary

This case addresses the admissibility of an in-court identification following a potentially suggestive showup. Whitmore was convicted of attempted rape and robbery. The key issue was the reliability of the victim’s identification, especially considering a prior showup where Whitmore was presented to the victim without a lineup after being implicated in other high-profile crimes to which he confessed (confessions later proven false). The New York Court of Appeals affirmed the conviction, finding that the prosecution had demonstrated that the victim’s in-court identification was based on her independent recollection of the event, untainted by the suggestive showup. The dissent argued that the suggestive showup and the subsequent retraction of his other confessions undermined the reliability of the identification.

Facts

On April 23, 1964, a woman was attacked and nearly raped on a street in Kings County. A police officer witnessed part of the assault but the assailant fled. The officer initially described the suspect as a Black male, 5’8″-5’9″, 165 lbs, wearing a tan coat. The victim described her assailant as a light-skinned Black male, 5’7″, 135 lbs, pockmarked, and wearing a tan coat. The next day, the officer saw Whitmore, who fit parts of the description, in a laundromat. Whitmore gave a false name and employment. He was later arrested and shown to the victim, who identified him. Whitmore then confessed to this crime, and also to two other infamous rape-murders. He was later exonerated of the other crimes after his confessions were proven false.

Procedural History

Whitmore was convicted in the trial court. An earlier appeal led to a post-trial identification hearing to determine if the victim’s in-court identification was tainted by the showup. The Appellate Division held the appeal in abeyance pending the outcome of the hearing. The trial court determined the identification was untainted. The Appellate Division then affirmed the conviction, and the case was appealed to the New York Court of Appeals.

Issue(s)

Whether the victim’s in-court identification of Whitmore was admissible, given the potentially suggestive nature of the pre-trial showup, and the later retraction of Whitmore’s confessions to other crimes?

Holding

Yes, because the prosecution demonstrated by clear and convincing evidence that the victim’s in-court identification was based on her independent recollection of the crime, untainted by the suggestive showup.

Court’s Reasoning

The Court of Appeals acknowledged the potential for suggestiveness in the showup procedure. However, the Court emphasized that the hearing court found the victim’s trial testimony on identification was untainted by the showup or any other improper suggestion. The court applied the rule that when a pretrial identification is potentially tainted, the prosecution must prove by clear and convincing evidence that the in-court identification has an independent source. The court deferred to the trial court’s finding that the prosecution met this burden. The dissent strongly disagreed, arguing that the conflicting descriptions, the false confessions, and the suggestive showup made the identification unreliable, stating “The positiveness of the Borrero identification is no better than the positiveness of the untrustworthy confessions. The positiveness in each instance is undermined or belied by ineradicable and contradictory facts of record and history.” The dissent highlighted the danger of relying on a witness’s positive identification when that identification might have been influenced by external factors, especially in light of the fact that Whitmore had falsely confessed to other crimes. The dissent further stated that the proof on the hearing must be “clear and convincing ”, that is, the proof must establish by clear and convincing evidence that the pretrial impropriety did not influence the in-court identification.