Suggestive Photo Identification and Withheld Case File
Four armed robberies of bodegas in the 43rd Precinct over 11 days; suspect described as male, 5'9", dark hoodie, distinct tattoo. Detective canvasses and gets a name, 'J.R.' A witness at the third robbery is shown a single photo of J.R. by the detective, who says, 'Is this the guy?' The witness says yes. The detective wants to conduct a lineup, but J.R. has a pending unrelated assault case and is represented by counsel. The detective also has a case file containing a DD5 with a witness's statement that she was 'not sure' at first, and a photo array showing another person was picked by a different witness. The detective plans to hold the file and not turn it over because 'the witness will be scared.' The lieutenant must review the identification plan before seeking an arrest warrant.
1. Evaluate the single-photo identification and the plan for a lineup.
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The single-photo showing is highly suggestive and will be attacked at a Wade hearing. A proper photo array uses a blind or blinded administrator, at least five fillers who fit the description, neutral instructions that the suspect may or may not be present, and documentation of the witness's words and confidence before any feedback. The detective's 'Is this the guy?' comment is exactly the kind of suggestion that can taint a later lineup. Before conducting a lineup, consult the DA's office about counsel. In New York, the right to counsel at a lineup generally attaches after formal charging on that matter; a pending unrelated case does not automatically give counsel a right to be present, but notice to counsel is the safer course and avoids a suppression issue. The lineup itself should use fillers matching the description and a blind administrator. If the witness identified J.R. from a single photo, the prosecution may need to show an independent source.
2. What is the lieutenant's obligation regarding the DD5 and the other photo array?
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The file cannot be held back. The DD5 with the 'not sure' statement and the other photo array are potentially exculpatory and must be preserved and disclosed under Brady and Rosario. The detective's concern that the witness will be scared is a safety issue, not a basis to conceal evidence; the Department can address safety through protective measures, redactions where legally permitted, and coordination with the DA, but not by destroying or hiding the material. The lieutenant should inventory the file, ensure all handwritten notes and DD5s are preserved, and ask the detective to explain the gaps in writing. If the file is incomplete, the lieutenant should direct a search for the missing documents and notify the DA's office. Concealment risks dismissal of the case and discipline for the detective and supervisor.
3. How should the lieutenant manage the investigation to avoid building the case on a tainted identification?
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The lieutenant should treat the investigation as a pattern case, not a single robbery. Assign a case detective to compile a chronology, link the four robberies by modus operandi, and seek independent corroboration: video, phone records, transit records, tattoo images, and any pawn or social media evidence. The arrest warrant application should rest on the totality, not just the tainted single-photo identification. The lieutenant should set deadlines, review the DD5s weekly, and ensure the detective documents each investigative step. If the DA declines to proceed because of the identification problem, the lieutenant should debrief the squad and correct procedures. The supervisory lesson is that speed in identification can destroy a strong case; a documented, neutral procedure is worth the extra hours.