Court of Appeals Allows Admission of Identification Evidence Which is Product of Suggestive Procedures Not Conducted by Police

In People v Adams (53 NY2d 241 [1981]) the Court of Appeals held that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of State constitutional law. Unfortunately, despite the fact that misidentification is the single greatest cause of wrongful convictions, the Court of Appeals in People v Marte (2009 NY Slip Op 04741 June 11, 2009) held that no similar per se rule applies to a suggestive identification in which the police are not involved.

The Court did recognize that "suggestiveness originating with private citizens can create a risk of misidentification" and concluded that "Perhaps other safeguards would be appropriate in particular cases, and we do not rule out the possibility that a court, in balancing probative value against prejudicial effect, may find some testimony so unreliable that it is inadmissible."

There is a Court that has held that unreliable identification evidence is inadmissible. That Court is located in Washington, D.C. and has nine members. Way back in 1977 that Court held in Manson v Braithwaite (432 US 98 [1977]) that "reliability is the linchpin in determining the admissibility of identification."

The decision of the Court of Appeals not to apply a per se rule against the admission of identification evidence which is the product of suggestive identification procedures should not be read to permit the admission of unreliable identification evidence. One would think that, given the United States Constitution, as interpreted by the United States Supreme Court and the Supremacy Clause, unreliable identification is inadmissible in New York courts.