Suggestive Identifications by Private Individuals

The Federal and State constitutions, of course, protect against governmental misconduct, and when the police or prosecutors violate a defendant's constitutional rights to secure evidence against him, that evidence will, with some exceptions, be excluded from the defendant's criminal trial.

The courts, however, have wrestled with the question of whether evidence should be excluded from a criminal trial when the evidence is secured by a private person using means which would lead to exclusion of the evidence if they had been employed by the police or prosecutors.

Today in People v. Marte the New York Court of Appeals concludes that a suggestive pretrial identification of a defendant will not be excluded from a criminal trial when the procedure involves only private individuals and not the police.

For months the victim of a shooting looked at hundreds of photographs shown to him by the police and was unable to identify anyone. After the defendant told the victim's sister that he had shot someone, she showed the defendant's picture to her brother who then identified the defendant as his assailant. She also wrote a letter to her brother recounting the defendant's admission and saying that "everyone thinks [he] shot you." Brother and sister then went to the police who conducted a lineup, and the vicim selected the defendant.

Under the per se exclusionary rule adopted in People v. Adams, 53 N.Y.2d 241 (1981), the suggestive pretrial identification of the defendant would have been suppressed if the police had done what the victim's sister did. But the Court today concludes that a similar rule does not apply when the pretrial identification is solely the result of conduct by private persons.

The exclusionary rule of Adams, the Court explained, is designed to deter police from engaging in conduct which will produce flawed identifications. The rule has no practical application to private individuals: "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 [the sister] from showing [her brother] defendant's photograph, or from telling him her reason for doing so." Protection for the accused rests in his opportunity to cross examine at the time of trial.

The New York Court of Appeals has traditionally been a strong proponent of the exclusionary rule of evidence as a means of deterring governmental misconduct. Because Marte did not involve any role by the police, I do not think it should be viewed as a retreat from the Court's traditional approach.