AD4: 95 minutes = "close temporal proximity"

People v Lewis, 2012 NY Slip Op 05449 [available here]

A "show up" identification procedure is basically just what it sounds like. After a crime is committed, and usually while the victim is still at the scene of the crime, a police officer "shows up" with a suspect. The suspect is usually handcuffed and seated in the back of a police car. The suspect is taken out of the police car and displayed for the crime victim. If it is dark, the suspect is typically lit up with one of the flood lights that the police have on their cruisers. The victim is asked if he or she recognizes the suspect, and in the overwhelming majority of cases, makes a positive identification.

At least on paper, the courts look at "show up" identifications with suspicion, and for good reason. It is hard to imagine a more suggestive way to display a suspect to a crime victim. The police are basically telling the witness: "we found this guy, we obviously think he's involved or he would not be handcuffed and locked in the back of my police car, so why don't you tell us he's the guy and we can all go home. And oh, in case you're confused, he's the guy standing in the spotlight."

In practice, show-ups happen a lot, and courts almost never keep out identification evidence or testimony based on the fact that the police deliberately choose to use the most suggestive and least reliable identification procedure at their disposal. Case in point is People v Lewis, a decision from the Fourth Department's last packet. After reciting the usual tough talk--the Court acknowledges that "showup identification procedures are generally disfavored"--the Court upholds the procedure anyway.

The Court notes the general standard: that "such procedures are permitted 'where [they are] reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive.'" So far, so good. But the defendant in Lewis was held by the police for an hour and a half before the police conducted the showup. Certainly this type of extended detention would invalidate the procedure? Not so, says the Fourth Department. Without discussion, the Court holds "the showup identification procedure was reasonable because it was conducted at the scene of the crime, within 95 minutes of the commission of the crime and in the course of a 'continuous, ongoing investigation.'"

The Court of Appeals case the Fourth Department cites in support of its holding upheld a showup identification where the suspect was held for under an hour, and even that holding was a significant departure from the previous 15-minute outer threshold. People v Brisco, 99 NY2d 596 [2003].)

The Fourth Department's decision is still more troubling because, as the Court admits, the police had probable cause to arrest the defendant even without the result of the showup identification procedure. That means the police were free to transport the defendant to the police station and arrange a lineup--a much more reliable identification procedure that is far less likely to result in the identification of an innocent person. Instead, the police employed the most suggestive identification procedure at their disposal, and in doing so dramatically increased the possibility of a mistaken identification.

And by increasing the "temporal proximity" threshold to 95 minutes--beyond the previous high-water mark set by the Court of Appeals--the Fourth Department continues to water-down the protections afforded defendants who are subject to show-up identifications.