New York Law Review

Tag: Negative Identification

  • People v. Smith, 93 N.Y.2d 354 (1999): Admissibility of Negative Identification Testimony

    People v. Smith, 93 N.Y.2d 354 (1999)

    Negative identification evidence is admissible to bolster the reliability of an eyewitness identification when the reliability of that identification is at issue.

    Summary

    The New York Court of Appeals addressed the admissibility of negative identification testimony and the elements of first-degree bail jumping. The Court held that negative identification evidence is admissible to enhance the reliability of an eyewitness identification. However, the Court also found that the defendant was improperly convicted of first-degree bail jumping because the court order requiring his appearance was not explicitly connected to a pending indictment, reducing the conviction to second-degree bail jumping.

    Facts

    Detective Brown, an undercover officer, participated in a buy/bust operation and identified Smith as the “steerer.” Another suspect was apprehended wearing similar clothing to the steerer. Detective Brown stated that this person was not the steerer. Smith was initially released on his own recognizance with a condition to appear. After an indictment, he failed to appear in Supreme Court and was subsequently indicted for first-degree bail jumping.

    Procedural History

    Smith was convicted of criminal sale of a controlled substance and first-degree bail jumping. The Appellate Division affirmed. The New York Court of Appeals granted permission to appeal.

    Issue(s)

    1. Whether negative identification testimony is admissible as evidence-in-chief to bolster the reliability of an eyewitness identification.
    2. Whether Smith’s conviction for first-degree bail jumping was proper, given that the initial order to appear was not explicitly connected to a pending indictment.

    Holding

    1. Yes, because negative identification testimony is relevant when the reliability of an eyewitness identification is at issue, and it enhances the credibility of the witness’s identification.
    2. No, because the order requiring Smith’s appearance was not explicitly connected to a pending indictment for a Class A or B felony, a necessary element for first-degree bail jumping.

    Court’s Reasoning

    The Court reasoned that negative identification evidence enhances the likelihood of an accurate eyewitness identification. It serves the same purpose as other forms of out-of-court identification evidence, such as videotaped lineups or prior descriptions. The Court noted, “[w]hen the reliability of an eyewitness identification is at issue, negative identification evidence can tend to prove that the eyewitness possessed the ability to distinguish the particular features of the perpetrator.”

    Regarding the bail jumping charge, the Court emphasized the specific elements of Penal Law § 215.57, which defines first-degree bail jumping. The critical element missing was a court order requiring Smith to appear specifically in connection with a pending indictment for a Class A or B felony. The initial order was connected to a felony complaint, not an indictment. Since no new securing order was issued after the indictment, Smith could only be guilty of second-degree bail jumping. The Court stated, “[f]irst degree bail jumping is set apart from the lesser offenses in that the court order that the defendant violated must have conditioned his release from custody, or continued liberty, on his appearance in connection with a pending indictment for an A or B felony.”

  • People v. Rodriguez, 51 N.Y.2d 751 (1980): Admissibility of Negative Identification Testimony

    People v. Rodriguez, 51 N.Y.2d 751 (1980)

    Negative identification testimony, where a witness fails to identify a defendant from a photo array or lineup, is admissible to demonstrate the witness’s ability to distinguish features and the credibility of their identification, provided the individuals in the array or lineup share similar characteristics with the defendant.

    Summary

    The New York Court of Appeals addressed the admissibility of “negative identification” testimony, where a witness failed to identify the defendant from a photo array. The court held that such testimony is admissible to show the witness’s ability to discern specific features and assess their overall credibility. The key consideration is the similarity in appearance between the defendant and the other individuals in the array. This case clarifies the distinction between bolstering positive identification (generally inadmissible) and using negative identification to assess witness credibility (potentially admissible).

    Facts

    The defendant was convicted of rape based on two separate incidents with similar characteristics. In one instance, the victim, Anne L., identified the defendant in a lineup and at trial. Before the defendant’s apprehension, Detective Sheehy showed Anne L. a photo array that did not include the defendant’s picture, and she did not identify anyone. At trial, Detective Sheehy testified about this prior failure to identify.

    Procedural History

    The defendant was convicted of rape in the first degree. The appeal centered on the admissibility of Detective Sheehy’s testimony regarding Anne L.’s failure to identify anyone in the photo array. The Court of Appeals affirmed the conviction, finding the negative identification testimony admissible in this specific context.

    Issue(s)

    Whether third-party testimony regarding a witness’s failure to identify the defendant in a pre-trial photo array (negative identification testimony) is admissible at trial.

    Holding

    Yes, because negative identification testimony is relevant to assessing the eyewitness’s ability to distinguish features and the credibility of their subsequent identification, provided there’s a reasonable similarity between the defendant and the other individuals in the array.

    Court’s Reasoning

    The court distinguished negative identification testimony from the inadmissible bolstering of positive identification. The court reasoned that negative identification is not hearsay because it is not offered for the truth of the matter asserted (i.e., that the defendant *is not* the perpetrator), but rather to show the witness’s powers of observation, memory, and reasoning. Unlike positive identification testimony, negative identification doesn’t create the risk of improperly influencing the jury by repeated assertions of identification. Instead, it assists the jury in evaluating the eyewitness’s credibility. The court emphasized that the relevance of negative identification hinges on the similarity between the defendant’s features and those of the other individuals depicted in the photo array or lineup. If the defendant’s appearance is significantly dissimilar, the negative identification has limited probative value. The court also addressed the concern that negative identification could be manufactured, stating that courts should reject such testimony if it appears motivated by anything other than sincere efforts to facilitate identification. In this case, the court found the testimony admissible because Detective Sheehy testified that all individuals in the array were male blacks with short afro haircuts and no beards, thus establishing a basis for comparison. Judge Gabrielli, writing the concurrence, stated: “In each case, the relevance of negative identification testimony will depend largely on the extent to which there is some similarity between the features of the individuals the eyewitness declined to identify and the features of the defendant.”