State of new york county of monroe



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STATE OF NEW YORK COUNTY OF MONROE


________________ COURT

PEOPLE OF THE STATE OF NEW YORK


-vs.- NOTICE OF MOTION

_____________________________,

defendant

PLEASE TAKE NOTICE, that upon the annexed affirmation of ___________________, Esq., the annexed exhibits and the prior proceedings in this case, the undersigned will move this Court at the Hall of Justice Rochester, N.Y., on the ________ day of ______________ 200___, at 9:30 a.m., or as soon thereafter as Counsel may be heard for an Order providing that a double-blind sequential line-up procedure be used if the defendant is to be placed in any line-up, or in the alternative, a hearing to determine the matter.

DATED: Rochester, New York

__________________, 200___

____________________________________

(Name Typed Here)

Office & Post Office Address

Telephone Number

TO: ________________________

District Attorney

Monroe County

Clerk of the ____________ Court

Monroe County

STATE OF NEW YORK COUNTY OF MONROE

________________ COURT

PEOPLE OF THE STATE OF NEW YORK


-vs.- AFFIRMATION

_____________________________,

defendant

_______________________, an attorney duly admitted to practice law in New York Courts, under penalty of perjury, affirms the following to be true:



  1. I am attorney of record for the above named defendant. I am familiar with the facts of this case and the prior proceedings held in it.

  2. This affirmation is made in support of my client’s application for a Judicial Order directing the use of a double-blind sequential line-up procedure.

  3. Unless otherwise indicated, all allegations of fact are made on information and belief based upon inspection of the record in this case, initial investigations of the facts and circumstances surrounding the incident, personal observations, and extensive review of scientific research in the area of Eyewitness Identifications and line-up procedures.

  4. The law is desperately behind the times. In the last 15 years, a large body of social science research has begun to unravel some of the mysteries of eyewitness identification. The findings are frightening. In a recent study of DNA exonerations, 53 of the 63 innocent people wrongly convicted were convicted based on faulty eyewitness identifications. Other studies, some involving hundreds of erroneous convictions consistently rank eyewitness identification as the leading cause of innocent people going to prison and even death row.

  5. These miscarriages of justice can be prevented. It should be of paramount concern to this court that innocent people are wrongly convicted. It must be the business of this and every court to insure that the chance of such a miscarriage of justice is minimized. It can be done. Indeed, it has been done. This application affords the court an opportunity to employ a procedure, formulated by the federal government, endorsed by social scientists around the world, and uniformly shown to decrease the chances of an innocent person being wrongly identified by 50 percent, while being just as effective in correctly identifying criminal suspects.

  6. A review of the science is astonishing. When compared to the traditional simultaneous lineup procedure, sequential lineups produce a significantly lower rate of mistaken identifications. In fact, critical tests have shown that sequential lineup procedures routinely decrease the potential for false identifications by 50 percent. In one of the first empirical studies on the sequential lineups, 243 undergraduate students witnessed staged thefts. Five minutes after the staged thefts, half of the witnesses were presented with a simultaneous photo array containing six persons. The other half was shown the six photographs sequentially. Half of the witnesses in each presentation condition viewed culprit-present photo arrays while the other half viewed culprit-absent photo arrays. The presentation style – simultaneous versus sequential – had a significant influence on witnesses’ identification performances. In the culprit-absent presentation, only 17% of those witnesses viewing sequential arrays made a false identification, as compared with 43% of those witnesses viewing simultaneous arrays.

  7. These initial findings have been replicated repeatedly by other empirical studies. Indeed, another study in a different lab showed that 39% of eyewitnesses viewing simultaneous six-person lineup identified an innocent person as the criminal, as opposed to 19% mistaken identification rate by those witnesses who viewed suspects sequentially. Yet another study found that among subjects shown culprit-absent photo arrays, false identifications were made by 20% of subjects who experienced simultaneous presentation and 5% of subjects who experienced sequential presentation. In a survey of studies, sequentially presented photo arrays successfully reduced false identifications in five different experiments, each aimed at demonstrating the ability of sequential presentation to reduce the singular and/or combined impact of typical lineup biases.

  8. In yet another study in which the actual perpetrator was not present, the findings are also frightening: when suspects were displayed in a simultaneous lineup, the false identification rate was 72.2%, whereas, when witnesses viewed photographs of suspects sequentially the rate of false identification decreased to 38.9%.

  9. The Memorandum of Law and exhibits attached hereto detail in greater depth the science and law applicable to this case. What is clear is that the legal community has been slow to react to the sea change in the science of eyewitness identification. What is striking is that with no additional effort, no added costs, and no additional inconvenience, the police, prosecutors, and judiciary could each put a stop to a practice that results in innocent citizens going to prison or death row for crimes they did not commit. This application does not seek to single-handedly reform police practices. It merely suggests a simple single small step in the right direction. A direction which has been well illuminated by the social scientists who have gone before us. A direction which leads to only one thing, the continued identification of the guilty, and a better way to avoid the conviction of the innocent. This application does not threaten anything that has come before it. Granting this relief will jeopardize no convictions, nor provide free passes to those already sentenced. What it will do, is set a new standard--one well supported by science, and long overdue. The method we suggest is not cumbersome. There is no reason it cannot be utilized. The benefits are manifest, and the drawbacks nonexistent. Justice cries out for its application.

WHEREFORE, the affiant requests that the motion be granted or in the alternative, that the court grant a Frye hearing to adduce such further facts and testimony as the court finds necessary to determine this application. And such other and further relief as this Court may deem just and proper.
DATED: Rochester, New York

________________, 200___


___________________

(Name Typed Here)

STATE OF NEW YORK COUNTY OF MONROE

________________ COURT



PEOPLE OF THE STATE OF NEW YORK


-vs.- NOTICE OF MOTION

_____________________________,

defendant

I. INTRODUCTION 7

II. THE PROBLEM OF EYEWITNESS IDENTIFICATION 8

III. A SEQUENTIAL LINE-UP PROCEDURE IS MORE RELIABLE 11



THAN A SIMULTAENOUS LINE-UP PROCEDURE

A. The Research 11

B. The Rationale 14

C. The Double-Blind Procedure 16

IV. THE COURT CLEARLY HAS THE POWER 19

TO GRANT THIS APPLICATION

A. Another Court has Already Granted the Type of Relief Sought Here 19

B. A Court Has The Inherent Power to Ensure that Investigations Be 20

Conducted in a Fair and Reliable Manner.

C. Here, The Prosecution has Asked the Court to Take Affirmative 21

Action in an Investigation.

D. C.P.L. § 240.40(2) Allows the Court to Order a Lineup That Will Be 22

Reliable and Fair.

E. A Simultaneous Lineup Could Result in Irreparable Harm 23

F. This Court Should Exercise It's Discretion To Order The Double-Blind 24

Sequential Lineup

IV. CONCLUSION 28

V. PROPOSED JUDICIAL ORDER 30


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