As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted by suggestion, identification procedures can lead to irreparable misidentification (People v Rodriguez,79 NY2d at 449); “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor; perhaps it is responsible for more such errors than all other factors combined”(People v Rodriguez, 79 NY2d at 449).
With respect to eyewitness testimony, the United States Supreme Court has acknowledged that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (United States v Wade, 388 US 218, 228 [1967]), while studies and psychological research support the court’s finding that identification testimony, among the most common form of evidence presented in criminal trials, is frequently wrong (see e.g., Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law & Hum. Behav. 603, 605 [1998] [study of 40 cases involving innocent people who were convicted of serious crimes and served time in prison, five on death row, in which 36 involved eyewitness identification where one or more eyewitnesses falsely identified the person]; Innocence Project, http://www.innocenceproject.org/Content/2080.php [179 of first 230 DNA exonerations involved mistaken identification]). The Court, explicitly recognizing the relationship between suggestiveness and mistakes in identification has repeatedly expressed concern that police arranged identification procedures may alter a witness’s memory rendering the subsequent identification testimony unreliable (United States v Wade, 388 US 218 [1967], Stovall v Denno, 388 US 293 [1967]; Simmons v United States, 390 US 377 [1968]; Manson v Braithwaite, 432 US 98 [1977]).
In People v Collins, 60 NY2d 214, 218 [1983], the Court of Appeals held that voice identifications are subject to the same concerns relative to suggestiveness, and same constitutional safeguards, as visual identifications (see also, People v McRae, 195 AD2d 180, 185 [1st Dept 1994]; People v Shepard, 162 AD2d 226 [1st Dept 1990], lv den, 76 NY2d 944). Thus, upon a motion to suppress, it is the prosecution’s obligation to come forward with evidence establishing that the police procedures used were not unduly suggestive as to either visual or aural identifications (People v McRae, 195AD2d 180, 185 [1st Dept 1994]).
The suggestiveness of pretrial procedures is determined by examination of the totality of the circumstances (People v Valdez, 204 AD2d 369 [2nd Dept 1994]). The People have the initial burden of going forward to show the “lack of any undue suggestiveness” (People v Chipp, 75 NY2d 327, 335 [1990]; People v Ortiz, 90 NY2d 533 [1997]). While suggestiveness is often the result of factors that highlight a particular suspect, a suggestiveness inquiry “must also review any actions taken by, or circumstances attributable to, the authorities which prompt, influence, or strengthen the witness’s identification” (Hibel, New York Identification Law, 142 [2006]).
The need to conduct a lineup, and to insure that fillers in the lineup have similar characteristics to the suspect and any description of the perpetrator applies to ear-witness as well as eye-witness identification procedures (People v McRae, 195 AD2d 180 [1st Dept 1994]). The First Department has held, with respect to an aural identification procedure that
suggestiveness could be caused by the selection of fillers whose voices were so dissimilar to a description given by the complainant of the criminal’s voice that the complainant would eliminate the fillers out of hand or by the selection of fillers whose voices were so similar to each other and yet so dissimilar to defendant’s as to unfairly highlight defendant’s voice.
(People v McRae, 195 AD2d 180, 185-186 [1st Dept 1994]).
The Court also held that “where the police conducted the voice identification and the defendant was compelled to participate, due process considerations require that the procedures have been conducted in a way not conducive to mistaken identification (internal citations omitted).” For example, a physical lineup in which the fillers were all of a different race than the defendant would not be permissible merely because the prosecution was able to show that the fillers had been selected by a totally random process (People v McRae, 195 AD2d 180, 186 [1st Dept 1994]).
So too with voice identifications: offering a single recorded voice for identification, for example, is the practical equivalent of displaying the suspect’s mug shot to the witness. Likewise, in a voice lineup, disparity in the voice characteristics of the fillers may be just as suggestive as differing physical characteristics.
That any failure to meet the constitutional standard may have been through oversight and not intentional is irrelevant to the test for suggestiveness (United States v Wade, 388 US 218 at 228, 229, 235 [1967]).
Finally, characterization of voice a identification as“confirmatory” is not warranted absent some evidentiary basis for the witness’s familiarity with the defendant’s voice (People v Deleon, 273 AD2d 27, 28 [1st Dept 2000]; see also, Hibel, New York Identification Law, § 1.02[7][c] [2006]).
