HAVE APPEARANCES OF KOURN ^ ( ^ ) APPEARANCES OF COUNSEL ^ (<Delete
Space> ^ ). ^ (<Delete Space> ^ ) IN THE MATTER OF BRANDON
WASHINGTON. WELCOME COUNSEL. MISS LORD PLEASE GO AHEAD.
ROBIN KAY LORD: THANK YOU. MAY IT PLEASE THE
COURTS I WOULD LIKE TO RESERVE A FEW MINUTES FOR REBUTTAL.
CHIEF JUSTICE RABNER: THAT IS FINE. ROBIN KAY LORD: THANK YOU.
LAST MONTH THIS COURT ONCE AGAIN DEMONSTRATED ITS COMMIT MTH
TO PROTECTING DEFENDANTS FROM LOOIF ALTERING KWENLSS OF MISIDENTIFICATION. IN
ACKNOWLEDGING THE INL HEERNTLY SUGGESTIVE NATURE OF AN IDENTIFICATION THIS
ON HABL COURT PUT AN END TO FIRST COURT IN COURT IDENTIFICATIONS ABSENT A GOOD
REASON AND WITH NOTE IT IS TO DEFENDANT. TODAY THIS COURT HAS THE OPPORTUNITY
TO EXPAND ITS PROTECTIONS TO ANOTHER INHERENTLY SUGGESTS I HAVE PRACTICE THAT
APPARENTLY SOME PROSECUTORS ENGAGE IN UNDER THE GUYS OF TRIAL PREP. THIS
PRACTICE OF SHOWING EYEWITNESSES BOTH SIJS YOU LAR PHOTOS OF THE DEFENDANT NEVER
SEEN BEFORE AND PREVIOUSLY IDENTIFIED PHOTO A RAISE COMPLETELY UNDERMINES
THE SPIRIT AND PURPOSE OF HENDER SON. WHILE IT APPEARS THAT ALL PAERTS
SEEM TO AGREE WITH THERE PROPOSITION, MY SAR ARGUES IT MATTERS NOT HERE
FOR TWO REASONS. ONE, IT WAS ONLY USED TO REFRESH A PRIOR PROPER OUT OF COURT
IDENTIFICATION; AND TWO, THERE WAS NO PREJUDICE HERE TO THE DEFENDANT.
WITH THE COURT'S PERSONAL I WOULD LIKE TO DRAES THOSE TWO REASONS.
WITH RESPECT TO THE REFRESHING A PRIOR PROPER OUT OF COURT IDENTIFICATION, THERE
IS REALLY FWRO COMPONENTS TO THAT. ONE IS REFRESH AND THE SECOND IS WAS
THERE A PRIOR PROPER IDENTIFICATION. OUT OF COURT. AS TO REFRESH, IF WE ACCEPT
THE PREMISE THAT AFFECTS A WITNESSES' MEMORY WHICH IT CLEARLY DOES WITH
MRULTS PAL VIEWINGS, AND CONFIRMATION FEEDBACK, WHY SHOULD IT BE ALLOWED TO DO WHY
SHOULD THEY BE ALLOWED TO DO IT REGARDLESS OF THE PURPOSE. AND IS THERE AN
INDICATION THAT THE WITNESS HAD A FAILING MEMORY AND IF SO ISN'T THAT EXCULPATORY
AND YOU HAVE TO TURN THAT OVER. IT IS STILL AN OUT OF CORE IDENTIFICATION
PROCEDURE WHERE YOU ARE ASKING A WITNESS TO IDENTIFY THE PERSON THEY PICKED OUT.
MOST IMPORTANTLY, THERE IS LESS PREJUDICIAL MEANS TO SHOW THE JURY THAT IT
PICKED OUT THE SUSPECT. A POLICE OFFICER WHO DID THE OURT OF COURT ARRAY
CAN TESTIFY TO THE ID ITSELF THERE IS A HEARSAY EXCEPTION FOR IT AND DON'T WE USELESS
PREJUDICIAL MEANS AS A STANDARD FOR 404 B AND OTHER PREJUDICIAL RULES THAT
PREJUDICE THE DEFENDANT. THE SECOND COMPONENT ASSUMES THERE WAS A PRIOR PROPER
OUT OF COURT IDENTIFICATION PROCEDURE HERE. THAT CANNOT BE SAID. THIS
CASE HAS MULTIPLE LAYERS OF CONTAMINATION OF IDENTIFICATIONS. FIRST IT BEGAN WHEN
WITNESSES WERE SHOWN THE DEFENDANT'S PHOTO BEFORE THE OUT OF COURT
IDENTIFICATION. QUESTION NURM SIX ON THE WORK SHEET WAS NEVER KD NO ONE ASKED IF
THE WITNESSES SPOKE TO ANYONE ABOUT THE IDENTIFICATION, SPOKE TO A LAY
WITNESS, SAW PHOTOGRAPHS THEY IGNORED QUESTION NUMBER 16. EVEN THE PROSECUTOR
HIMSELF SAID HE WAS SURPRISED DURING THE 104 HEARING THAT SCOTT THE THIRD SHTHS
THE SON, ACTUALLY SHOWED IT I AM SORRY, GOT THE PHOTO RECEIVED THE PHOTO
FROM HENDRICKS AND SHOWED IT TO HIS DAD. PETERSON, THE SEKSD ASZ PEK AS TO WHY
IT IS NOT A PROPER OUT OF OF CORE IDENTIFICATION, PETERSON SAYS THE
PHOTOS WERE ALL ON ONE SHEET. THAT -- NOT SEQUENTIAL. SO THE
CONTAMINATION HERE BEGAN BEFORE THE PHOTOS A RAISE CONTINUED THROUGH THE FOES TOE
A RAISE AND THROUGH TRIAL COURT ACCEPT THEY SAY WE ARE NOT PREJUDICED.
AND THE VERDICT SOMEHOW WOULD BE THE SAME. WELL, IS ISN'T NOTICE A SIGNIFICANT
COMPONENT OF DUE PROCESS? NO DEFTD SHOULD EVERYTHING TO TRIAL WOULT KNOWING
ALL THE EYEWITNESSES HAVE BEEN SUBJECTED TO EXTRANEOUS INFLUENCES ONE WAY OR ANOTHER
HERE BECAUSE THEY DID NOT ASK QUESTION NUMBER 16, BECAUSE THE COMES THE
POLICE OFFICER DID NOT ASK ANYONE IF THEY WERE SHOWN PHOTOS WHICH THEY ARE SUPPOSED
TO OR SPOKE WITH ANYONE ABOUT THE IEBLGS WHICH YOU ARE SPOETSED TO AND BECAUSE
TLE DIDN'T TELL US ABOUT THE PRIOR PRETRIAL PREP PROEGS WE DIDN'T KNOW ABOUT THIS
WE HAD NO NOTICE. I THINK IT'S IMPORTANT FOR THIS COURT TO
UNDERSTAND AND IF I THINK FOR ME IT IS IMPORTANT FOR ME TO EMPHASIZE THAT THE INDICATES
THAT I PREPED WAS AN EVEN TIERL DIFFERENT CASE SGLIERNLTS THAN I TRIED HERE HAD
WE KNOWN AT THE OUTSET ABOUT ALL THE DIFFERENT LAYERS OF EXTRANEOUS INFLUENCES WE
COULD HAVE DONE A WHOLE MUSCLE TUD OF DIFFERENT THINGS I WAS LEARNING ALL
THIS NOERGS IN REAL TIME. WE COULD HAVE HIRED AN EXPERT ON IDENTIFICATION, I COULD
HAVE CONTESTED THE DNA DIFFERENTLY, I COULD HAVE OPENED DIFFERENTLY SHS I
COULD HAVE CROSSED THE WITNESSES DIFFERENTLY FRLT I SHOULD THAN FWEE ALLOWED TO
LEARN THERE FOERTHS THROUGH CROSS-EXAMINATION. SO THAT IS A SIGNIFICANT
PART 69 PREFRNL DIFFICULTIES THAT THIS CAUSED. A DEFENDANT'S RIGHT TO I
AN FAIR TRIAL SHOULD NOT BE CONGRESS JENTD ON WHETHER THE ATTORNEYS OLD ENOUGH
TO KNOW WHO EEFRL CONTACT NEEL IS AND THEREFORE ROIS THAT A WITNESS HAD BEEN
SHOWN A PRIOR PHOTO. IN ADDITION TO NOTICE RELIABLE
IDENTIFICATION IS ALSO ANOTHER COMPONENT TO DUE PROCESS. AND IT CAN'T BE SAID THAT
THESE IDENTIFICATIONS HERE WERE OTHERWISE RELIABLE. THEY WERE MULTIPLE
LAYERS AS I HAVE STATED OF SUGGESTIVE INFLUENCE ON EACH ONE AFTER MULTIPLE PREP
SESSIONS, THE DESCRIPTIONS CHANGED, WITNESSES WHO COULDN'T IDENTIFY THE
DEFENDANT SUDDEN LOOK E COULD IDENTIFY HIM IN COURT, WITNESSES WHO COULDN'T MAKE
AN IN COURT IDENTIFICATION SUDDENLY IDENTIFY HIM AFTER THEY EVER SHOERN
A PHOTO ARRAY IN COURT AND AN IN COURT IDENTIFICATION IS MADE WITHOUT EVEN LOOKING
AT THE PERSON. THESE IDENTIFICATIONS WERE NOT OTHERWISE
RELIABLE AND FINALLY, AN A SETS MENT OF PREJUDICE I WOULD ASK THIS COURT FOR AN
ASSESSMENT OF PREJUDICE THIS COURT SHOULD NOT CONDUCT THE ANALYSIS IN A VACUUM.
RESPECTFULLY, THIS TRIAL LASTED AN OVER ACCUMULATIVE SENSE OF FASH NIS
GOOD INC. TO END FOERTHS WAS CONSTANTLY BEING WITHHELD FROM THE DEFENSE. IT STARTED
IN THE VERY BEGINNING OF TRIAL, AS THE RECORD REFLECT REGARDING 1134 BODY
KAMENTS LITERALLY BIG FOR EXAMPLE THE PROSECUTOR TO TELL ME WHO THE OFFICERS ARE
WHO IS DEBLG ANY ON THAT I ASKED THE COURT FOR HELP THE COURT REFUTSZ TO
ERTD 0 THE STATE DO THAT I LEARNED THIS INFORMING REAL TIME THROUGH THE THE COURSE
OF THE TRIAL THE LEAD DETECTIVE HIS PURPORTED BODY KAM WAS DEAD IF YOU
BLIEF THAT ONE, NOTES NOTES WERE DESTROYED AFTER THEY CLAIM THEY DIDN'T TAKE ANY
NOTES WHEN I SHOW THEM ON BODY CAMS ISN'T THAT YOU TAKING A NOTE OH YEAH WE MUST
HAVE DESTROYED EXPERT I AM GET WILL GO EXPERT REPORTS IN THE MIDDLE OF TRIAL THE
COURT SAYS OH WELL MISS LORD UBLG HANDLE THAT YOU CAN FIND AN EXPERT TO REBUT
IT. ALL WHILE LEARNING THAT THE WITNESSES WERE SHOWN PHOTOS
BEFORE, DURING AND AFTER. WE MAINTAIN THAT THE PRACTICE OF SHOWING PHOTOS TO I
WITNESSES DURING TRIAL PREP SESSIONS MUST COME TO AN END ALL TERRIBLE TIFRL
THE ENTIRE IRNLTSER ASHGS MUST BE ELECTRONIC RECORDED STEM TO EXTERNAL SUFFER
RECORDS GOES WOULD PROVIDE NOEFT IS TO I AN DEFENDANT AND I LAWSUIT NL TO
SEE THE PROES EAST. BRANLD DONE WASHINGTON WENT TO TRIAL ON A THEORY OF
MISTAKEN IEBLGS BY A DVR WHO THOUGHT HE APPEARED ON A KREFR VIDEO MRINS BEFORE
TS SHOOTSING BY EYEWITNESSES THAT WERE UNKNOWINGLY MISLED INTO IDENTIFYING HIM
THROUGH THE MULT MULTIPLE LAYERS OF EXTRANEOUS INFLUENCE WITHOUT NOTICE
TO HIM OR HIS ATTORNEY. THE ONLY REMEDY HERE IS A NEW TRIAL. I WELCOME THE COURT'S
QUESTIONS. CHIEF JUSTICE RABNER: MISS LORD IN YOUR BRIEF
YOU ARGUED THE PROSECUTORS SHOULD BE BARRED FROM SHOWING PHOTOS OF A DEFENDANT
DURING A PREP SETHS LONG AFTER A CRIME UNLESS THERE IS EXTRAORDINARY NEED OR
REASON TO DO SO. CAN YOU TELL US WHAT AN EXTRAORDINARY NEED WHAT A COMPELLING
REASON WOULD BE? ROBIN KAY LORD: CHIEF JUSTICE
RABNER: AND I HOPE THAT OTHER COUNSEL CAN LIES WISE ANSWER THAT QUESTION DURING
THE COURSE OF THIS ARGUMENT TODAY. ROBIN KAY LORD: RESPECTFULLY,
WE TAKE THAT POSITION AS A COMPROMISE. I HONESTLY BELIEVE IT SHOULD BE
BARRED PERIOD. ROBIN KAY LORD: CHIEF JUSTICE
RABNER: I ACCEPT THAT LET'S GO TO THE TO THAT FALL BACK ARGUMENT. CAN YOU FLESH
IT OUT FOR US? ROBIN KAY LORD: SO IF YOU THINK ABOUT IT
HOW COULD IT POSSIBLY COME TO FRUITION WITHOUT INFLUENCING THE EYEWITNESS'S
IDENTIFICATION. BECAUSE THEY HAVE AT THEIR DISPOSE ALT THE ABLT SUPPOSE THE
WITNESS NEVER LOOKED ALT THE OUT OF COURT IDENTIFICATION FOR THE FIRST TIME THERE
WAS NO OUT OF COURT IDENTIFICATION THEY HAVE AT THEIR DISPOSAL THE ABLT
TO DO AN OUT OF COURT IDENTIFICATION CONSISTENT WITH HENDER SON AND THE ATTORNEY
GENERAL GUIDELINES THEY CAN DO THAT. THEY CAN SLULG DO THAT. THEY COULD HAVE
DONE THAT MATTHEWS THEY COULD HAIF SKON IT WITH SCOTT JUNIOR OR SCOTT THE THISHD AULTD WITNESSES THEY COULD ASK FO COME IN. SO THAT WRORNLT A REASON I EMPHASIZE
REASON WOULD BE THAT SOMEHOW THE WITNESS LACKED SOME TYPE OF, I DON'T KNOW
I CAN'T ANSWER IT HONESTLY. CHIEF JUSTICE RABNER: THE OTHER ONE
WAS NOT A REASON. ROBIN KAY LORD: THAT IS MY POIN.
CHIEF JUSTICE RABNER: CAN YOU GIVE US AN COMBAM MEDICAL OF FOLLOWING UP
ON THE SUGGESTION IN YOUR BRIEF THE FOLLOW UP POINT WHAT IS AN EXTRAORDINARY
REASON FOR EXAMPLE THAT WOULD PERMIT A PROSECUTOR TO DO THIS DURING PREP?
ROBIN KAY LORD: CHIEF JUSTICE RABNER: IF YOU DOINT PREVAIL
WITH YOUR PER SE ARGUMENT. ROBIN KAY LORD: THE ONLY EXPLANATION
I CAN COME UP WITH IS THEY SUDDENLY FIND THIS WITNESS, THEY HAD NO IDENTIFY
WHATSOEVER HE WAS A WITNESS THEY CAN'T GET PHOTOS TOGETHER IN TIME. THERE IS A
WHOLE HOST OF POTENTIAL PONLTS THAT I CAN'T COME UP WITH RIGHT NOW BUT AS
I RESPECTFULLY SUBMIT TO BE HONEST WITH YOU I THROUGH THAT IN THERE I DIDN'T THROW
IT IN THERE BUT I SLTHED THAT AS A COMPROMISE BECAUSE TO EMPHASIZE THAT
IT REALLY REALLY SHOULDN'T HAPPEN. CHIEF JUSTICE RABNER: SO IT IS
NOT A TERRIBLE COMPROMISE AND THAT'S WHY I WOULD LIKE FOR DOWN TO TRY TO
PUT SOME FLESH ON THE BONES FOR US THIS AFTERNOON. ROBIN KAY
LORD: IF THERE IS NO OTHER ALTERNATIVE OUT THERE OTHER THAN SHOWING THEM THE
PHOTO, THEN THEY WOULD HAVE TO GIVE US NOTICE, HAVE AN MRIK BEFORE THE COURT,
FLESH IT OUT ON THE RECORD, WITHOUT THE WITNESS I MEAN THAT'S OBVIOUSLY THAT'S
THE BLEMENT THAT IS ONE OF THE REASONS WHY WE DON'T ALWAYS ASK FOR A WADE
HEARING WHEN THE STANDARD IS SO GREAT WE DON'T WANT THE WITNESS TO COME IN AND
HAVE SOME CONFIRMATION THE DEFENDANT IS SITTING AT THE TABLE BEFORE THE
JURY. CHIEF JUSTICE RABNER: THE FALL BACK ARLTH THAT YOU
PROVIDED APPLY THO SITUATIONS AS WELL WHERE A WITNESS SAW A PHOTO EARLIER IN THE
PROCESS AND THEN 2 YEARS GO BY AS WE APPROACH THE DATE OF TRIAL AND THERE
IS A SIT DOWN WITH THE WITNESS, ARE THERE EXTRAORDINARY CIRCUMSTANCES COMPELLING
REASONS THAT WOULD JUSTIFY SHOWING THE PHOTO AT THAT POINT AND WHAT WOULD
THEY BE. ROBIN KAY LORD: I DO NOT THINK SO BECAUSE THE WILT
ALREADY HAD THE BENEFIT OF THE PHOTO I AM ASSUME BY THE KOERTSD' QUESTION BY YOUR
HONOR'S QUESTION THAT THERE WAS AN IDENTIFICATION. SO THERE WAS A PRIOR
IDENTIFICATION. ALL THAT DOES IS NUMBER ONE EXPOSE YOU TO MULTIPLE VIEWINGS AND
IT'S A CONFIRMATORY FEEDBACK I MEAN ISN'T A TRIAL PREP SOETHS A CONFIRMATORY
FEEDBACK WITHIN ITSELF ISN'T IT INTEREST HEERNT HERE IS THE PERSON THAT IS ON TRIAL
THE PERSON YOU IDENTIFIED WE BELIEVE HE IS GUILTY AND WE ARE HAVING A TRIAL
SO THE WHOLE PROCESS ITSELF IS CONFIRMATORY CONFIRMATORY INHERENTLY
CONFIRMATORY. JUSTICE SOLOMON: LET'S ASSUME THERE IS A HEND
ER SON COMPLIANT OUT OF COURT IDENTIFICATION PRETRIAL HOWEVER LLG LONG IT IS. PRETRIAL
THEY WANT TO COLLECT AND SEE IF THE WITNESS STILL HAS A RECOLLECTION WHO
THAT PERSON IS. WOULD THEY BE ABLE TO DO ANOTHER HENDER SON COMPLIANT IDENTIFICATION
AND THAT IS MY FIRST QUESTION THE SIKD QUESTION IS IN DOING SO WOULD THEY
NOT HAVE TO INCLUDE ANOTHER PHOTO OF THE SAME PERSON THEY PREVIOUSLY IDENTIFIED
AND I THINK THE ARGUMENTS MADE IN YOUR BRIEF THAT THAT'S NOT PROPER RNDZ
HENDER SON. ROBIN KAY LORD: THAT IS A GREAT QUESTION BECAUSE
THERE ARE MRUL PAL VIEWINGS. JUSTICE SOLOMON: ONCE IN A WHILE I
GET ONE. ROBIN KAY LORD: SO I'M FAILING TO SEE A
SITUATION WHERE THEY WOULD HAVE A NEED TO WANT TO KNOW IF HE REALLY REMEMBERED THE
PERSON. SOL SOMERSET COUNTY INL JUST SAGS WHETHER HE WOULD BE ABLE TO IDENTIFY
HIM IN COURT TO SEE IF THEY HAVE THAT RECOLLECTION THAT THEDZ 2 YEARS AGO BECAUSE
EVERYBODY AGREES MEMORIES FADE. ROBIN KAY LORD: AGREED.
HOPEFULLY THIS COURT 1 DAY WILL PRECLUDE IN COURT IDENTIFICATION PERIOD
BECAUSE OF THE IN HEERN SUGGESTIBILITY OF IT BUT THEY HAVE OTHER MEANS TO DO IT
TO ACCOMPLISH WHAT THEY WANT TO ACCOMPLISH AND THAT IS THE POLICE OFFICER KONLS
IN AND TESTIFIES WE SPOKE TO THERN SOON AFTER THE CRIME, HE IDENTIFIED THIS
INDIVIDUAL, IT IS FRESH IN HIS MIND AND NOBODY PERSUADED HIM WE COMPLIED WHERE
HENDER SON AND HERE IS THE EVIDENCE FRM I DON'T KNOW WHY A PROSECUTOR WOULD
EVEN WANT TO DO HYPOTHETICALLY THE LIEP CALIFORNIA AND RUN THE RIFRNG OF HAVING
TO TURN OVER EXCULPATORY INFORMATION AND I WILL TELL YOU I STARTED I WAS
STARTED IN 18986 THIS IS THE FIRST TIME NAULG OF MY YEERGS THAT I KNEW THIS WAS HAPPENING OR EVEN EXPERIENCED THIS HAPPENING. MOST PROSECUTORS WON'T
INFORMATION BECAUSE THEY ROIS THE PROBLEMS NUMBER ONE OR RUN THE RISK OF GIVING
THE DEFENDANT MORE INFORMATION. CHIEF JUSTICE RABNER: WHAT
ABOUT THERE HYPOTHETICAL: 2 YEARS HAVE PASSED WE ARE ABOUT TO GO TO TRIAL
YOU SIT DOWN AND PREP A WITNESS. AND THE WITNESSES ALREADY REVIEWED AN A RAID
AND INITIALED NUMBER FOUR AND EVERYTHING WAS APPROPRIATELY REPORTED TO THE
DEFENSE CONSISTENT WITH THE HENDER SON DECISION. THE PROSECUTOR WANTS TO MAKE
SURE THE WITNESS ISN'T CALL THE FLAT FOOTED NOT RECALLING THAT THAT WHOLE
THING TOOK PLACE 2 YEARS AGO. MAY THEY SHOW THE SAME ARRAY WITH THE INITIALS AND
SAY DO YOU REMEMBER HAVING A CHANCE TO MAKE AN ID BEFORE DO YOU REMEMBER PICKING
SOMEONE DO YOU REMEMBER SPREGING YOUR LEVEL OF CONFIDENCE CAN THAT TAKE
PLATES. ROBIN KAY LORD: I SUGGESTS NO. CHIEF
JUSTICE RABNER: CAN IT TAKE PLATES WOULT SHOWING THE ARRAY? ROBIN
KAY LORD: CHIEF JUSTICE RABNER: KUG THROUGH ALL OF THE
QUESTIONS TO ATTEMPT TO REFRESH AS TO WHAT OCCURRED WITHOUT PRESENTING THE
SUGGESTIVE PHOTO? ROBIN KAY LORD: SO THAT SORT OF THE ANSWER
TO THAT SORT OF TALKS ABOUT SEG WAYS INTO HOW WORDS CAN ALSO SUGGEST A WITNESS
OR TAINT A WITNESSES' MEMORY. I THINK IT IS AN INTERESTING QUOTE IN CHEN THAT
SAYS THUS FOR EXAMPLE IF A POLICE OFFICER CONDUCTING A PHOTO A RATES ASKS ARE YOU
SURE THE ATTACKER WASN'T WEARING GLASSES THAT PROCEDURE WOULD COMPEL A RULE
104 HEARING AN INHERENTLY SERGEANT I HAVE. SO TO ANSWER YOUR HONOR'S QUESTION,
I THINK THAT IF THERE WERE EVEN GOING TO -- SILT DOWN AND HAVE A CONVERSATION
WITH A WITNESS ABOUT THEIR OBSERVATIONS, I THINK THAT NEEDS TO BE RECORDED. IT
NEETDZ TO BE RECORDED BECAUSE IF THEY CHANGE THEIR TESTIMONY, IF THEY CHANGE
WHAT THEY ARE GOING TO SAY OR NOT, I THINK A NL IS TL TO KNOW HOW THAT CAME ABOUT.
JUSTICE SOLOMON: YOU ARE SUGGESTIONING THAT THEY NEED TO
RECORD PRETRIAL PREP? BECAUSE THEY ARE GOING TO GO OVER WITH A LOT OF WITNESSES
A LOT OF INFORMATION MOSTLY DOCUMENTARY AND PHOTOGRAPHS NOT NECESSARILY
OF THE DEFENDANT TO REFRESH THEIR RECOLLECTION. YOU ARE SUGGESTING THAT SHOULD
BE RECORDED? ROBIN KAY LORD: I AM SUGGESTING YES. I AM
SUGGESTING THAT. JUSTICE SOLOMON: A POLICE OFFICER COMES IN
AND THE PROSECUTOR IS TALKING TO THE POLICE OFFICER THE ASSISTANT PROSECUTOR, AND
HE IS TALKING TO THE POLICE OFFICER AND SAYS YOU HAD A REPORT AND THIS IS WHAT
YOU SAID OR DO YOU REMEMBER WHAT YOU SAID IN THAT REPORT YES YES YES, WOULD YOU
REMEMBER YOU ALSO, IS IT THAT HAS TO BE RECORDED THAT PRETRIAL PREP.
ROBIN KAY LORD: SO SEE THAT IS A MRIEFR THERE IS NO RISK OF TANING A WITNESSES
MEMORY THAT LEASE COMING TO KOIRT AND GIVING IDENTIFICATION.
CHIEF JUSTICE RABNER: JUSTICE SOLOMON: A NON POLICE OFFICER YOU
GAVE THE STATEMENT TO THE POLICE DO YOU RECALL IT? NO I DON'T YOU REFRESH
THE RECOLLECTION OH YA E DIFFICULT DID HAVE THE CONVERSATION WITH DETECTIVE SUBMIT.
ROBIN KAY LORD: NOGS WRONG WITH THAT BECAUSE THERE IS NO RISK
TO THE DEFENDANT NO PREJUDICE TO THE DEFENDANT IN THAT REGARD FAIR FAIR ARE YOU
SAYING IT SHOULD BE RECORDED IF THE TRIAL PREP IS IN RELATION TO THE PHOTO
A RARE THAT WAS PREVIOUSLY KUKD? BASED ON THE CHEEFRS' HYPOTHETICAL?
ROBIN KAY LORD: I'M SUGGESTING THAT THE IF YOU ARE GOING TO -- LET ME ANSWER
THE QUESTION IF I CAN BACKING UP A LITTLE. A WITNESS SITS DOWN. Q.
FRONTD OF ME I PREP THEMG WHETHER I AM A PROSECUTOR DID HE EVER ATTORNEY IF
I AM TAKING NOTES AS TO WHAT THE PROSECUTOR IS SAYING I HAVE TO TURN OVER
NOELTHS IT IS A WITNESS THERE IS NO PRIVILEGE THERE IF I.E. ELECTRIC NOT TO TAKE
THOSE NOTES THERE IS NOTHING TO TURN OVER THE POINT BEING THERE IS NOTHING ABOUT
THAT PRETRIAL PREP THAT WOULD BE PRIVILEGED THAT WOULD BE CONFIDENTIAL
THAT THE OTHER SIDE SHOULDN'T BOO E ALLOWED TO KNOW UNLESS THE PROSECUTOR IS THINKING
OH THE WITNESS STINGS, HIS MEMORY HE IS GOING TO MAKE A BAD WITNESS WHAT
HAVE YOU HIS INNER THOUGHTS SO WHY SHOULD BE THEY HAD ALLOWED TO WITHHOLD INFORMATION
WHERE OTHERWISE TLD TO SIJ REPLY BECAUSE THEY DON'T RECORD IT ELECTRIC FLICK
CLI OR WROO IT DOWN THE PREJUDICE SO SGRAT TO A DEFENDANT AS FAR AS THE I AM
SORRY? JUSTICE SOLOMON: YOU ARE TALKING ABOUT JUST THE PHOTO
PREP? YOU ARE SHOWING A PHOTO OF THE DEFENDANT IN PREN OR ARE YOU TALKING ABOUT
ALL THE PREP THAT THEY DO WITH WITNESSES, POLICE AND NON POLICE, THAT TALK
ABOUT THINGS, DOCUMENTS, PICTURES, REPORTS, TO REFRESH THEIR ^ REMEMBERING ^ WRECK.
ROBIN KAY LORD: THEY ARE ASKING THE WITNESSES AS TO WHAT
HAPPENED. WHY CAN'T WE KNOW WHAT THE WITNESS SAYS AS FAR AS WHAT HAPPENED.
JUSTICE WAINER APTER: YOU ARE SAYING YOU ARE ALWAYS ENTITLE TO ALL
NOTES TAKEN IN ANY WITNESS PREP SITUATION PERIOD. ROBIN KAY LORD:
YES SOLT SOL I AM NOT TALKING ABOUT NOTES. ROBIN KAY LORD:
I KNOW. JUSTICE SOLOMON: I AM TALKING ABOUT RORTDING THAT
WITNESS PREP SESSION. ROBIN KAY LORD: ILTS NOT JUST SUCH A
FARFETCHED PROPOSITION. JUSTICE SOLOMON: I AM NOT SAYING IT IS
FARFETCHED I AM ASKING YOU IF THAT'S WHAT YOU MEAN. ROBIN KAY LORD:
BECAUSE OF THE HYPOTHETICAL THAT I PROPOSED. EVERYTHING THE WITNESS
TELLS TO ME DOESN'T GET TO MY SAR IF I DON'T WRITE IT DOWN. THAT DOESN'T SEEN FAIR.
SO WHAT IF THE WITNESS GETS ON THE WITNESS STAND AS WHAT HAPPENED HERE AND GIVES
AN EVEN TIERLT LIKE LET'S USE THIS CASE GLASSES. JUSTICE SOLOMON:
SAME RULES WOULD A YOU ARE SARG THE SAME RULES WOULD APPLY TO DEFENSE COUNSEL?
ROBIN KAY LORD: THE SAME RULES DO APPLY TO DEFENSE COUNSEL.
JUSTICE SOLOMON: YOU ARE PREPING A WITNESS YOU ARE NOT TAKING
NOTES YOU ARE TALKING TO THEM DO YOU REMEMBER THIS DO YOU REMEMBER THAT YOU
WOULD HAIF TO MAKE A RECORD OF THAT AND TURN IRT OVER TO THE PROSECUTION.
ROBIN KAY LORD: SO THE RULES AS FAR AS THE DID HE EVER ATTORNEY AND PRESENT
AN PROSECUTOR AS WE KNOW ARE DIFFERENT BECAUSE IF THEY SATD SOMETHING THAT'S
IN CUP TRI WE DON'T HAVE TO TURN THAT OVER BUT IVEN DRIKD TO TURN OVER MY NOTES
TO THE COURT FOR IN CAMERA INSPECTION TO REDABLG ACKNOWLEDGE TURN OVER WHAT THE
WITNESS SAID TO ME ABSOLUTELY. SO THERE IS CERTAIN PRIVILEGES THAT APPLY TO THE
FOR THE PROSECUTION PAL. JUSTICE PATTERSON: THAT IS NOT RORTD GOES
YOU HAVE NEVER BEEN COMPEL TO RECORD A SESSION THAT IS A VERY INTRUSIVE
PROCESS FOR TRIAL PREPARATION ROSHDING. ROBIN KAY LORD: WHAT
IS THE PREJUDICE LET'S TALK ABOUT THAT FOR A SECTION IF WE CAN. SO AS THE
#K3578 PEL IN CHEN AND AS WHAT HAPPENED HERE, SUPPOSE NOBODY THEY DIDN'T SHOW ANY OF
THESE WITNESSES PHOTOS, SUPPOSE THEY PREPPED 18 OTHER WITNESSES SAID WAS
THE GUY WEARING GLASSES WASN'T THE GUY WEARING GRASS EAST WE EVER DNA ON THESE
GLASSES THESE WORDS ARE SPOKEN TO THIS WITNESS WE LEARN THIS FROM MIKE ELSE
FREJS I CAN INTERVIEWS WE LEARN THAT WORDS CAN ALTER A PERSONS MEANT REAND E SO
WHEN THAT WITNESS GETS ON THE WITD STAN AND SATD THE GUY HAD TASTE GLASSES EVEN
THROW I DRN SAY THAT DPORT LASZ 2 YEARS FSHL IS TLD TO KNOW WHY THAT
WITNESSES' MEMORY CHANGED AND IT'S BECAUSE I WOULD SUGGEST HOW THE WITNESS WAS QUESTIONED
IN PRETRIAL PREN. MAT PAT HE OR SHE CAN BE CROSS-EXAMINED ABOUT TRIAL
PREPARATION. ROBIN KAY LORD: WELL LET'S TALK ABOUT THAT FOR
A SECOND WHAT HAPPENED HERE NOBL REMEMBERED IT RIGHT? EVERY WITNESS THAT WAS SHOWN
A PHOTO SAYS THEY WN SHOWN THE PHOTOS I HAVE THE PROSECUTOR TWICE STIPULATING
THAT THEY SHOWED PHOTOS. EVEN THE PROSECUTOR REPRESENTED AND STIPULATED AT SIDE
BAR SO THAT IS REALLY NOT A ^ SHRUGS ^ SOLUTION ALTHOUGH IF IT WAS A PERFECT
WORLD IT WOULD BE. CHIEF JUSTICE RABNER: SET THE FACTS OF THIS
CHASE TO ONE SIDE I DWLANT TO COME BACKS TO THE EXAMPLE I GAVE YOU EARLIER LET'S
SAY YOU HAD A CLEAN IDENTIFICATION AT THE OUT SITD OF THE INVESTIGATION A PHOTO
ARRAY AND ALL THE ATTORNEY DOES AT A LATER POINT IN TIME SHORTLY BEFORE TRIAL TO
REFRESH RECOLLECTION IS SAY DO YOU REMEMBER SEEING A PHOTO ARRAY? YES. DO YOU
REMEMBER WHETHER YOU COULD PICK SOMEONE OUT OF THAT ARRAY? YES. I REMEMBER
IT WAS THE ONE ALL THE WAY ON THE LEFT AND ASSUME THAT'S EXACTLY WHAT THEY SAID
BEFORE. AND DO YOU RECALL WHETHER YOU WERE CONFIDENT? YEAH I WAS A HUNDRED
PERCENT SURE, EXACT SAME AND ALSO. THAT HAS TO BE RECORDED?
ROBIN KAY LORD: SO WHAT YOU ARE SAYING IFRM NOT SHOWING THE PHOTO YOU ARE NOT
SHOWING THE PHOTO. ROBIN KAY LORD: WHAT YOU ARE ASSUMING BY
THAT QUESTION IS THERE A THE QUESTIONS COME OUT THAT WAY AND THE ANSWERS
COME OUT THAT WAY. CHIEF JUSTICE RABNER: I WANT TO START THERE
WE WILL GO BEYOND THAT. ROBIN KAY LORD: THEN THE ANSWER IS NO BUT
YOU CAN'T PREDICK THE FUTURE YOU CAN'T BREE PARTICULAR WHAT IS GOING TO
HAPPEN THESE ARE LAY PEOPLE THEY ARE TALKING TO. CHIEF JUSTICE
RABNER: YOU DOERN MAY HAVE TO RECORD ONLY WITH A VIDEO RULE 311 ALLOWS FOR A
REPORT TO BE WRITTEN AFTER THE FACT AS WELL ARE YOU SUGGESTING A VIDEO RECORDING
OF THAT EXCHANGE OR A WRITTEN STATEMENT BY THE ATTORNEY AFTERWARD?
ROBIN KAY LORD: I DON'T SEE THE HARM IN RORTDING ANY WITNESS IDENTIFICATION.
CHIEF JUSTICE RABNER: I AM NOT ASKING WHAT THE HARM IS I AM
ASKING WHAT YOU BELIEVE THE LAW REQUIRES. OR SHOULD REQUIRE NOT HOW ONEROUS IT IS
BUT WHAT SHOULD BE REQUIRED IN LIGHT OF THE RISKS A SOESHLTHED WITH SMENL
REAND EYEWITNESS IDENTIFICATION. ROBIN KAY LORD: 311 TALKS ABOUT
WHAT THE LAW REQUIRES. IT SAYS THE IDENTITY OF ANY INDIVIDUALS WITH HOLM
THE WITNESS HAS SPOKEN ABOUT THE ID PROCEDURE AT ANY TIME BEFORE DURING OR AFTER
THE OFFICIAL IDENTIFICATION PROCEDURE AND A DETAILED. CHIEF JUSTICE
RABNER: THIS IS FOR AN IDENTIFICATION PROCEDURE I WAS NOT ASKING ABOUT AN
IDENTIFICATION PROCEDURE I WAS ASKING FOR REVIEWING WHAT HAD OCCURRED LET'S CALL
IT REFRESHING BUT WITHOUT A PHOTO. ROBIN KAY LORD: SO.
CHIEF JUSTICE RABNER: YOU THINK 311 SHOULD EXTENT TO THAT.
ROBIN KAY LORD: I DO AND I READ IT TO EXTEND TO THAT BECAUSE IT SAYS AFTER,
AFTER THE OFFICIAL IDENTIFICATION PROCEDURE IT DOESN'T SAY
SIMULTANEOUSLY AFTER IT SAYS AFTER AND A DETAIL SUMMARY OF WHAT WAS SAID. SO YOU
ALREADY HAVE A RULE THAT SUGGESTS I SHOULD OCCUR AND WHY IT SHOULD OCCUR SO
SIMPLY BECAUSE IT HAPPENS FEBRUARY 17TH, TWNS VERSUS FEBRUARY 17TH, TWIENT SHOULDN'T
MABLG A DIFFERENCE BECAUSE IT'S A RECOGNITION THAT IT EFFECT THE
WITNESSES' MEMORY WHAT'S BEING SAID TO THAT PERSON. IT DOESN'T MATTER IF IT'S
SAID RIGHT AFTER AN HOUR AFTER A MONTH AFTER DURING TRIAL PREP I MEAN IF YOU START
FROM THE PREMISE THAT HENDERSON AND RIGHT WHICH IS IT IS OBVIOUSLY IF YOU
START FROM ALL OF THE RESEARCH AND THE SOCIAL STUDIES AND SCIENCE THAT ANYTHING
AND EVERYTHING THAT IS SAID TO A WITNESS CAN ALLER THEIR NEM REE SPEAKING
LY OVERPASS AGE OF TIME, WHY NOT RECORD WHAT'S HAPPENING? SO YOU CAN RECORD THE
ENTIRE INTERVIEW WITH EYEWITNESSES INL TALKING ABOUT EYEWITNESSES I AM NOT
TALKING ABOUT EVERY WITNESSES THEN THE STATE CAN REDACT WHAT THEY BELIEVE IS SOMEHOW
PRIVILEGED OR MASS NOTHING TO DO WITH THE PERSON'S ABLT TO REMEMBER IF THEY WERE
TALKING ABOUT THE METS OR SOMETHING LIKE THAT. CHIEF JUSTICE
RABNER: MISS LORD COULD YOU GO BACK TO THE LANGUAGE OF 311, THE WORD AFTER YOU
WERE FOCUSED ON WHERE WERE YOU READING FROM? ROBIN KAY LORD:
I AM SORRY JUDGE. CHIEF JUSTICE RABNER: WHERE WERE YOU
READING FROM WHERE YOU WERE UNDER SCORING. ROBIN KAY LORD: PARAGRAPH
EIGHT NEW PARAGRAPH TEN. CHIEF JUSTICE RABNER: THAT IS THE
WORD AFTER YOU WERE EMPHASIZING. ROBIN KAY LORD: OR AFTER
THE OFFICIAL IDENTIFICATION PROCEDURE. CHIEF JUSTICE RABNER:
I AM JUST ASKING WHERE YOU ARE REFERRING TO. ROBIN KAY LORD:
I AM SORRY NUMBER TEN, THE IDENTITY OF ANY I AM SORRY C 10, THE IDENTITY OF ANY
INDIVIDUALS WITH LOM THE WITNESS HAS SPOKEN ABOUT THE PROCEDURE.
CHIEF JUSTICE RABNER: THIS IS THE QUESTIONS THAT I POSED ON THE HYPOTHETICAL
RELATE NOT TO MAKING THE IDENTIFICATION ITSELF. YOU'RE READING IT IN A VERY
BROADWAY. ROBIN KAY LORD: I AM. I AM. AND I THINK IT'S
RELEVANT TO THE CASE BEFORE THE COURT THAT THERE IS A RECOGNITION LIKE I SAID IN
2017 IT NIEDZ TO BE RECORDED, WHY NOT WHAT IT IF IT WAS THE NEXT DAY.
CHIEF JUSTICE RABNER: SO WHAT MAY A PROSECUTOR DO WHEN A COMPLICATED TRIAL LIKE
THIS ONE TAKES PLACE YEARS AFTER, THE ACTUAL APPROPRIATE IDENTIFICATION
PROCEDURE? ROBIN KAY LORD: I CAN TELLING YOU WHAT THEY SHOULD
THAN HAVE DOON BUT I HAVE ALREADY TOLD YOU THAT. WHAT THEY ARE ALLOWED TO DO THEY ARE
ALLOWED TO BRING A WITNESS IN THEY ARE ALLOWED TO PREPARE HIM TO TESTIFY.
CHIEF JUSTICE RABNER: WHAT MAY THEY SAY OR DO DURING THE COURSE
OF THE PREPARATION. ROBIN KAY LORD: YOU ARE GOING TO SIT ON THE
WITNESS STAND QUESTIONS ARE GOING TO BE SKTD OF YOU. CHIEF JUSTICE
RABNER: WITH RESPECT TO THE PRIOR IDENTIFICATION. ROBIN KAY
LORD: DO YOU RECALL GOING DOWN TO THE POLICE STATION AND SPEAKING TO POLICE AND
BEING SHOWN PHOTOS? YES TELL US WHAT YOU RECALL ABOUT THAT AS OPPOSED TO
TELLING THEM ASKING THEM WITH LEADING QUESTIONS OWN ENDED QUESTIONS LET THE WITNESS
TALK AND THE DIFFICULTY OF RECORDING THAT VERBATIM IS I AM MENS.
JUSTICE NORIEGA: COUNSEL IS IT YOUR POSITION THAT THE PROSECUTOR MAY ASK THE
WITNESS TO CONFIRM THEIR RECOLLECTION OF HAVING SELECTED A PHOTOGRAPH
PREVIOUSLY BUT NOT ACTUALLY REPLICATE GOES OOR REPEAT GOES THE ENTIRE IDENTIFICATION
AGAIN? ROBIN KAY LORD: YES. INCLUDING NOT STHOEG THEM THE
PHOTOGRAPH JUST REFRESHING THEIR RECOLLECTION AS TO THAT IT OCCURRED.
JUSTICE NORIEGA: SO THE PROCESS BY ITSELF SO THAT WHEN THEY GO TO TRIAL
THEY ARE ON THE STAND THEY CAN BE ASKED ABOUT THE FIRST TIME THE FAK THEY WENT
THROUGH THAT PROCESS BUT NOT SPECIFICALLY TO REDO THE IDENTIFICATION AGAIN.
ROBIN KAY LORD: YES. CHIEF JUSTICE RABNER: YOU ARE CRITICAL
POINT IS DON'T SO THEN A PHOTO DURING PREP. ROBIN KAY LORD:
I WOULD LIKE TO EXPAND THAT. MY CRITICAL POINT BEYOND BEYOND THAT IS ALSO DON'T
TALK TO THEM IN A LEADING MANNER ABOUT THE FACTS OF THE CASE. CHIEF
JUSTICE RABNER: THAT EXTENDS WELL BEYOND THE PARTICULARS OF THE ISSUE IN FRONT
OF US OF COURSE. ROBIN KAY LORD: BUT DOES IT? BECAUSE THE
WITNESSES' TESTIMONY CHANGED WITH RESPECT TO GLASSES AND THEN WHEN.
CHIEF JUSTICE RABNER: WE ARE TALKING ABOUT THE GENERAL RULES NOT WHAT HAPPENED
IN THIS CASE. THE PROSECUTORS AND DEFENSE ATTORNEYS SHOULDN'T BE TELLING
WITNESSES THESE ARE THE FACTS. ROBIN KAY LORD: EXACTLY.
CHIEF JUSTICE RABNER: THIS IS WHAT YOU SHOULD TESTIFY TO THAT IS ELEMENTARY.
ROBIN KAY LORD: THIS IS NOT WHAT YOU TESTIFIED TO THEY SHOULD
THAN SERGEANT IT TO THEM SO THEIR MEMORY OF THE EVENTS IS AURL ERD ARN GET ON THE
STAND AND TESTIFY ABOUT GLASSES SCOTT JUNIOR THE FATHER HE SAID THAT HE
OVERHEARD THE TRIAL PREP WITH HIS SON. JUSTICE PATTERSON: WE EVER
A LINLTED GRANT HERE WE HAVE ONE ISSUE BEFORE US. ROBIN KAY
LORD: OKAY. JUSTICE WAINER APTER: THE ANGS IN THIS CASE
HELD EVEN WHEN WITNESSES ACKNOWLEDGE BEING SHOWN A PREVIOUSLY IDENTIFIED PHOTO
DURING PRETRIAL PREP, PREPARATION AND WHEN THE STATE'S LEAD INVESTIGATOR ADMITTED
DOING THE SAME DEFENDANT NEVER SOUGHT A HEARING OUTSIDE THE PRESENCE OF THE JURY
TO CONTEST THE OUT OF COURT OR IN COURT IDENTIFICATIONS WE DECLINE TO CONSIDER
SUCH A SIGNIFICANT ISSUE ON THE RECORD PRESENTED. SO WHAT
SPECIFIC HEARINGS DO YOU REQUEST EXACTLY WHEN WHEN YOU LEARNED ABOUT THE PREVIOUS
SHOWING OF THE PHOTOS? ROBIN KAY LORD: I WOULD BE HAPPY
TO ANSWER THAT. SO LET'S START WITH HOW I LEARNED THIS INFORMATION THAT
THERE WAS PHOTOS BEING SHOWN. THE WITNESS WAS NOT ON THE WITNESS LIST IN 2017
HE WAS NOT ON 9 WITNESS LIST IN 2019. JUSTICE WAINER APTER:
YOU ARE REFERRING TO SCOTT THE THIRD. ROBIN KAY LORD: CORRECT.
IN THE MIDDLE OF TRIAL THERE IS A DISCUSSION WITH THE PROSECUTOR ABOUT
THE WITNESS I PUT ON THE RECORD I MAKE APPLICATION TO BAR HIS TESTIMONY FROM COMING
IN I HAD NO IDEA HE WAS GOING TO TESTIFY BECAUSE WHEN HE WAS AT THE VF WITH
HE REFUSED TO COOPERATE HE WOULDN'T COOPERATE WITH LAW ENFORCEMENT IR ASSUME HE
WAS THAN GOING TO COOPERATE WITH LAW ENFORCEMENT IF I HAD KNOWN THAT WAS
THE PERSON PERSON I HAD KNOWN I HAD KNOWN HE HAD SHOWN A PHOTO TO LART THAT'S ALL
I KNOW BECAUSE HEART DOWN THEED IN HIS REPORT. JUSTICE
PATTERSON: SLOW DOWN A LITTLE BIT YOU FLEW HE HAD SHOWN A NOTE TOE TO WHO.
ROBIN KAY LORD: OFFICER HEART SORRY. SO THE INFORMATION THAT I HAD PRETRIAL
WAS THAT THERE WAS A FACE BOOK PHOTO OF MY CLIENT AND THAT IT WAS IN THE
POSSESSION OF SCOTT THE THIRD, AND THAT HE SHOWED IT TO OFFICER HEART 6789 THAT
GOES WHAT IN OFFICER HEART'S REPORT. TLACH WHEN YOU READ BODY CAMS YOU GET PIECE
BITS AND PIECES OF OTHER INFORMATION THAT'S WHAT I KNEW NOT ENOUGH FOR ME
TO ASK FOR A HEARING NOT A WITNESS I HAD NO INFORMING HEEDZ SHOWN IT TO ANYBODY
ELSE WHEN I LEARN HE IS A WITNESS I WANT TO BAR HIM NOR TWO REASONS ONE
LATE NOTICE AND TWO HIS IDENTIFICATION IS BASED UPON WHAT SOMEONE ELSE TOELDZ HIM
A NOTE TO WAS GIVEN DO HIM IN THE COURSE OF THAT THE COURTS GRANTS THAT IN THE
COURSE OF THAT 104 HEARING WE LEARN MORE INFORMING WE LEARN NUMG ONE HENL DRIKS
ANOTHER WITNESS IN THIS CASE, ACTUALLY GAVE IT TO HIM WHICH IS CRITICAL I
DIDN'T KNOW THAT, AND NUMBER TWO, HE SHOWED IT TO HIS FATHER SCOTT JUNIOR, WHO BY THE
WAY WHEN HE TESTIFIES DENIED IT BEING SHOWN TO HIM. SO THESE ARE IMPORTANT
CRITICAL INFORMATION. IN THE MIDDLE OF A 104 LAERG I AM NOW LERNG THAT THIS
OCCURRED VMTH I THEN SAY AT THE ENDS #69D HEARING, JUDGE, THERE IS A LOT OF NEW
INFORMATION THE PROSECUTOR CONCEDED THIS WAS NEW INFORMATION. I DIDN'T
KNOW. HE DIDN'T KNOW. WE NEED TO HEAR FROM PEN V HENDRICKS. I ASK IN 5 TEE I
ASK THE NED ONE NOT TWO BUT FIVE SPRALT AND DISTINCT TIMES I AM SORRY THAT
WAS, 6 T IN 5 T I ASK FOR A HEARING I ASK THAT THE HEARING BE CONTINUED BUT THAT
WAS DENIED. SO. JUSTICE NORIEGA: CAN I CLARIFY AN ISSUE? IS
IT THE SITUATION HERE THAT THE PHOTO BY THE WAITRESS THAT WAS NOT WORKING THAT
NIGHT THE BARTENDER THAT WASN'T WORKING THAT NIGHT DID SHE SENT THE FACE BOOK
PHOTO TO MISS HENDRICKS WHO SHOWN SHOWED IT TO SCOOT THE THIRD AND IS THAT
THE PHOTO THAT EVENTUALLY BECAME CONNECTED TO THE FIRST SIX FAK THAT WAS ACTUALLY
USED AND USED IN A HENDER SON PHOTO ARRAY. ROBIN KAY LORD:
NO THAT WAS A FACE BOOK PHOTO. JUSTICE NORIEGA: RIGHT BUT
DID THAT LEAD TO IDENTIFYING A PHOTO THAT WAS LATER USED IN ANOTHER SIX-PACK
WAS THAT THE FIRST TIME SOMEBODY MADE A CONNECTION USING A PHOTO?
ROBIN KAY LORD: IT WASN'T USED IN THE SIX FAK BUT MY POINT WAS THAT THE WITNESSES
WHO LOOKED AT THE SIX-PACK PREVIOUSLY LOOKED ALT THAT NAS BOOK PHOTO AND
SO TO ANSWER YOUR HONOR'S QUESTION, NUMBER ONE I AM LEARNING THIS REAL TIME I DO
ASK FOR A HEARING I ASKED FOR HENDRICKS DENIED DENIED DENIED THEN WE'RE IN
MATTHEWS IN CROSS-EXAMINATION OF MASS US. JUSTICE WAINER APTER: YOU
SAID THAT WAS. Q. 6 TEE AND FIVE TEE? ROBIN KAY LORD:
MATTHEWS TESTIMONY. JUSTICE WAINER APTER: OKAY.
ROBIN KAY LORD: DURING THE MATTHEWS TESTIMONY THAT'S WHEN MATTHEWS TESTIFIES
MATTHEWS GIVES A STATEMENT AND SAYS IT IS A MULTI COLORED SWEAT JACKET HE IS
NOW TESTIFYING TO THIS EEFRLG CONTACT NEEFL JACKET I A LEATHER COAT EVEN TIERL
DIFFERENT LIKE I MENTIONED IN MY OPENING I KNEW WHO EEFRL NEEFRL WHAT MY A
SOESHG APPARENTLY DIDN'T BUT IT IS A GOOD THING FOR MY KLEIN BECAUSE I WENT TO
SIDE BAR AND I'M LIKE WHAT'S GOING ON HERE DID HE SHOW HIM PHOTOS AND IF YOU LOOK
AT THAT SIDE BAR EXCHANGE, NOT ONCE NOT TWICE BUT FIEFR TIMES I'M DEMANDING
A HEARING RESPECTFULLY I'M ASKING FOR A HEARING I WANT TO KNOW WHAT FOET TOESZ
WERE TAKEN I WANT TO KNOW WHAT PHOTOS I AM SORRY WHAT PHOTOS WERE SHOWN
I TWAN TO KNOW WHAT PHOTOS WERE STHOEN WHEN THEY WERE SHOWN I EVEN ASKED FOR MILLER
TO TESTIFY WE HAVE TO HEAR FROM MILLER WE HAVE TO HEAR FROM DETECTIVE MILLER
I DON'T KNOW ANY OF THIS INFORMATION ALL OF THIS IS RELEVANT CRITICAL INFORMATION
AFFECTING THE RELIABILITY NOT JUST OF THIS WITNESS THIS IS GIVING ME THE
BEGINNING NOT EVEN THE OTHER WITNESSES NOW I AM IN REAL TIME LEARNING ALL THIS
IN THE MIDDLE OF TRIAL IT SHOULD THAN HAPPEN THAT SHOULDN'T HAPPEN MUCH I
RESPECTFULLY DISAGREE WITH THE APPELLATE DIVISION THAT THERE IS NO RECORD AND I
DIDN'T ASK FOR A HEARING. HOW WOULD I KNOW IN ADVANCE TO ASK FOR SOMETHING I DIDN'T
KNOW EXISTED? IT'S FUNLT ALLEY UNFAIR TO PUT A DEFENDANT IN THAT SITUATION
TO ASK FOR A HEARING WHEN YOU DON'T KNOW THE FACTS. AND MIND YOU THE ON REASON
WHEN DIDN'T KNOW THE FACTS IS BECAUSE IT WAS BEING WITHHELD FROM US BY THE
STATE SO THAT'S NOT FAIR. SO HOPEFULLY THAT NS ANS THE COURT'S QUESTION. AND
REALLY THERE IS A RECORD THERE IS A RECORD WHAT WAS SHOWN AND WHAT WASN'T
SHOWN IT IS FOR THIS COURT TO DETERMINE WHETHER OR NOT THE CONVICTION SHRUBBERY
VERSZED AS A RULE OF THAT IT. THE RECORD IS THE DETECTIVE MIMER TESTIFIED
THAT HE SHOWED THE WITNESSES WHO PREVIOUSLY SAW THE PHOTO ARRAY THEIR PHOTOS THAT'S
THREE THAT'S HENDRICKS, PETERSON, AND SCOTT JUNIOR, AND THEN MAT THUS, OH
BY THE WAY THE JUDGE SORRY, THE COURT DIRECTED IN A THE STATE TELL ME WHAT PHOTOS
HE SHOWED MATTHEWS IN FRONT OF A JUDGE RNL WHILE THEY ARE SITTING RIGHT THERE AT
COUNSEL TABLE WITHOUT MARKING WITHOUT A RECORD NOTHING AND THERE IS A VERY I MEAN
IT IS A KOEL TRANSCRIPT I AM SURE YOU GOT THE GIST THE OF IT WE ARE GOING
TO CONTINUE WITH CROSS-EXAMINATION THE JURY'S LOOKING ON I'M THERE HE'S HANING
PLEA NEAT TOES THAT HE SHOWED THE ONE PHOTO WITH THE GLASSES AND EEFRL CONTACT
NEEL THING I AM SUPPOSE TO PICK IT UP AND CROSS-EXAMINE AND KNOW WHERE I AM
GOING I MEAN YOU LOOK AT ME HERE I ORGANIZE THINGS I HAVE WHOLE AREAS WHERE INL
GOING TO CROSS-EXAMINE AND YOU JUST HAVE TO I FELT LIKE A ONE ARM PAPER
HANGER FRANKLY SO I ASKED FOR A HEARING THEN I ASKED FOR A HEARING THROUGH THE
104 HEARINGS, THROUGH MATTHEWS SHG WE WERE REALLY PUT IN A VERY UNFAIR SITUATION
HERE DUE TO NO FAULT OF OUR OWN. IF THE POLICE JUST SIMPLY WOULD ASK THESE WITNESSES
AND COMPLY WITH THE WORK SHEET NUMBER 16 DID YOU TALK TO ANYBODY ABOUT THIS
IDENTIFICATION, WE WOULD ALL KNOW I COULD HAVE A HEARING LIKE I SAID COULD I DO
ALL KIEFRS THINGS WITH THAT. WE DIDN'T KNOW. AND THEY DIDN'T TELL US ABOUT
THE TRIAL PREP. WE LEARNED THAT THROUGH THE COURSE OF THE TRIAL FRM OH I FORGOT
TO ANSWER THE QUESTION SO WHAT WE KNOW ON P ROR IS ALS FOLLOWS WE KNOW THE
PHOTO A RAISE WERE SHOWN RESHOWN TO THOSE WITNESSES WHO DID THE OUT OF COURT
IDENTIFICATION AND WE ALSO KNOW THAT MATTHEWS SAW A PHOTO BECAUSE OF THE
EXCHANGE AT SIDE BAR AND WE ALSO KNOW THAT PETERSON WAS SHOWN A PHOTO BUT WE
DON'T KNOW WHAT FWOET DPOE THAT WAS AND HE DOINDZ SEEING THE PHOTO THE PROSECUTOR
HATD TO STIP ULTD THAT HE SHOWED HIM A PHOTO AS WELL SO WE KNOW THAT THIS
HAPPENED AND THE QUESTION IS WHY SHOULD THAN WE HAVE KNOWN BEFORE, WHY SHOULD WEEFK
PUT IN A SITUATION WHEN WE ARE TALKING ABOUT A CASE OF MISIDENTIFICATION
I MEAN THAT'S WHAT THIS CASE IS ABOUT IT CANNOT BE NOR GOTTEN THAT THERE WERE TWO
"WILTHS WHO WERE AT THAT BAR THAT NIGHT THAT WENT TO THE POLICE STATION
AND THEY WERE SHOWN A PHOTO ARRAY THE SIX-PACK AND BOTH OF THEM DID NOT IDENTIFY
MY CLIENT. SO THAT GOES '3 WHO DID, AND TWO THO DIDN'T AND PS THE TWO WHO DIDN'T THERE IS NO EVIDENCE IN THE RECORD THAT THEY WERE EKS POSSESSIONED TO THE
I WOULD RESPECTFULLY ASK THIS COURT TO DO SOMETHING ABOUT IT."
CHIEF JUSTICE RABNER: NO QUESTIONS ANYONE? ANYTHING YOU WOULD LIESHG TO ADD.
ROBIN KAY LORD: WELL, THERE IS SOME SUGGESTION THAT THE DEFENDANT
WAS FAMILIAR TO THE INDIVIDUALS AND IF THE COURT HAS ANY QUESTIONS RARTSDZING
THAT I JUST WRANTED TO TALK ABOUT THAT BREEFLLY THAT SOMEHOW THAT SHOULD EFFECT
THE ANALYSIS. SO RESEARCH TEMS US THAT MEMORY IS FAR TOO COMPLEX TO DISREGARD
SIS TEMPT AND ESTIMATE VARIABLES WHEN AND RELY BILL ISN'T THEIR REALLYLY 3 DIFFERENT
LEVELS OR NL DIFFERENT LEVELS OF FAMILIARITY THERE IS MINIMAL, THERE IS
MODERATE THERE IS EXTENSIVE EITHER SOMEBODY IS FAMILIAR WITH SOMEONE 0 OR THEY
KNOW SOMEONE. THEY REALLY ARE ONLY CONFIRMATORY IDENTIFICATIONS LET ME
REPHRASE. THEY ARE SUGGESTING IT IS JUST A CONFIRMATORY IESHLG OF SOMEONE THEY
KNOW BUT REALLY THE ONLY ^ CON ^ CONNECTICUT FOINL TRI IDENTIFICATIONS IF
THE WITNESS NEW THE SUS PEBLG SO WELL THAT NOI AMOUNT OF SUGGESTION COULD POSSIBLY
TAINT THE IDENTIFICATION HERE. THESE WERE EMPLOYEES IN A BAR WHO HAD 2000
PATRONS A MONTH POSSIBLY I WHATS DOING THE MATH WITH ONE OF THE WAY TRES EAST, I
MEAN, IT WAS FOR FOUR TO FIVE TIMES EVERY FEW MONTHS LITTLE END FIVE NEVER
BEFORE OR NOT A REGULAR TWICE SO THESE AREN'T MENL THAT REALLY REALLY KNOW REALLY
REALLY FAMILIAR WITH THE INDIVIDUAL. I MEAN IT'S NOT ENOUGH TO SAY THAT THE
FACT THAT THE SYSTEM AND VARIANCE V VARMS VAR ASHLGS AND EGS MATED VAR BALANCES
SHOULD BE IGNORED BECAUSE IT IS A FAVENLG SFAS THERE IS NOTHING IN THE RESEARCH
TO SERGEANT THAT THERE WAS AN OFFICER SKRIETED BY THE PUBLIC DEFENDER
CONSISTENT WITH THAT AND WHAT ALSO YOU CAN'T FORGET IS THE FACT THAT IT WAS WHITMAN'
S FAILED FAMILIARITY WITH THE DEFENDANT THAT CAUSED HIM TO BE HERE TODAY.
DETECTIVE WHITHAM LOOKED AT THE KREFR INVITE AND SAW THAT BRAS BRANL DO YOU
UNDERSTAND YASH STOP HONE I FLI I PROVE THAT THROUGH THE THE TRIAL AND
WITNESSES SAID RA THAT WAS NOT HIM BUT HE SAID HE WAS FAMILIAR WITH BRANDON HE LOOKED
LOOKS AT THE CELL PHONE VIDEO HE THERE IS IT'S BRANDON IT IS NOT BRANDON THAT
IS THE ONLY REASON THE SOLE ROEN THESE GLASSES WERE COLLECTION BECAUSE IF YOU
LOOK AT DETECTIVE KOR DOE MASS '278 SHG HE COLLECTED BECAUSE HE WAS HE WROTE IN A
REPORT THAT THE GLASSES MATCHED THE SUS PEBLTHS' SCENE IN A VIDEO PRIOR
TO THE VIDEO WHICH JUST WASN'T THE CASE SO I THINK AS PLAYED OURT AND THE FACTS
IN THIS CASE FAMILIARITY REALLY IS AN ISSUE AND IT PROVED THAT IT ACTUALLY
HAS THE COUNTER EFFECT OF BEING PREJUDICIAL. I DON'T
KNOW IF URNS HAVE ANY OTHER ADDITIONAL QUESTIONS. CHIEF JUSTICE
RABNER: THANK YOU NIS LORD MR. VAN. THE SIMPLE RULE I PROPOSE TO THE COURT IS THE
STATE SHOULD NEVER SHOW PHOTOGRAPHS TO A DEFENDANT AT A PRETRIAL IDENTIFICATION
MEETING. IF THE WITNESS HAS ALREADY MADE AN IDENTIFICATION, THEN IT IS A REPEATED DIDN'T
POE SURE TO A SUSPECT THAT RISKS TAINTING THE LATER IN COURT IDENTIFICATION. IF THE WITNESS
HAS NOT ALREADY MADE AN IDENTIFICATION, THEN ONLY A PROPERLY CON STRUBLG PHOTO ARRAY SHOULD BE
PRESENTED TO THE WITNESS SHOWING A SINGLE PHOTO OF THE DEFENDANT TO THE WITNESS IS A HIGHLY
SUGGESTIVE SHOW UP PROCEDURE. IN OTHER WORDS, WHETHER OR NOT A WITNESS HAS MADE PRIOR
IDENTIFICATION SHOWING THAT WITNESS A PHOTO OF DEFENDANT CAN HAVE A CORRUPTING EFFECT
ON THE WITNESS'S MEMORY. IF THIS PROCESS DOES OCCUR, THE STATE SHOULD BE REQUIRED TO RECORD
IT. THE DEFENSE SHOULD BE ENTITLED TODAY A WADE HEARING AND IT SHOULD BE THE RARE CASE
WHERE A SUBSEQUENT IN COURT IDENTIFICATION SHOULD BE ALLOWED. THIS COURT HAS REEPTDLY
RECOGNIZED IN BERNIE AND WATSON THAT FIRST TIME IN COURT IDENTIFICATION RZ INHERENTLY
SUGGESTIVE. IN THIS CASE WE HAVE 3 WITNESSES WHO MADE FIRST TIME IN COURT IDENTIFICATIONS
RNGSZ AND 2 OR MAYBE 3 WITHINS WHO IDENTIFIED DEFENDANT IN COURT AFTER REPEATEDLY BEING
SHOWN DEFENDANT'S FOE TOI TOW WHICH THEY HAVE PREEL BEEN SELECTED FROM THE PHOTO ARRAY.
SO ALTHOUGH THERE ARE 6 WITNESSES WHO IDENTIFIED THE DEFENDANT IN COURT AS THE SHOOTER,
THERE'S REAP TO DOUBT THE RELIABILITY OF EVERY 1 OF THEM IN WATT TON AND BERNIE
THIS COURT FURTHER HELD THAT 1 GOOD REASON TO PERMIT A FIRST TIME IN COURT IDENTIFICATION
COULD BE WHERE AN EYE WITHIN IS FAMILIAR WITH A DEFENDANT FROM BEFORE THE CRIME OCCURRED.
FAMILIARITY HAS OFTEN BEEN CITED AN IS A BASIS TO REHABILITATE IDENTIFICATIONS OTHERWISE
TAINTED BY SUGGESTIVE CIRCUMSTANCES IS BUT AS I DISCUSSED FURTHER IN MY BRIEF FAMILIARITY
ISN'T AN EASY SOLUTION. IT IT HAS BEEN STUDIED VERY LITTLE AND STUDIES THAT HAVE BEEN
CONDUCTED THAT SHOW THAT FAMILIAR IDENTIFICATION RZ SUBJECT TO MANY OF THE SAME CONCERNS
THAT A STRANGE IDENTIFICATION IS, MANY OF THE SAME SOURCES OF TAINT THAT MIGHT UNDERMINE
THE RELIABILITY OF THE IDENTIFICATION. ASSOCIATE JUSTICE ANNE M. PATTERSON:
SO CAN FAMILIARITY CONSTITUTE EXTRAORDINARY CIRCUMSTANCES THAT WOULD WARRANT ALLOWING
A PHOTOGRAPH TO BE SHOWN TO A WITNESS IN PRETRIAL PREPARATION. MR. VAN JURA:
I THOUGHT ABOUT THE QUESTION SINCE IT WAS PROPOSED BY CHIEF JUSTICE RABNER WHAT WOULD
BE COMPELLING CIRCUMSTANCES AND I THOUGHT OF SOMETHING EXTREME WHERE A WITNESS HAD BEEN
IN A COMA UP UNTIL THE DAY OF TRIAL OR THE DAY BEFORE TRIAL BUT EVEN THEN WHY NOT SHOW
THAT WITNESS A PROPERLY ADMINISTERED PHOTO ARRAY?^ SO EVEN WHEN I THINK OF AN OUT LAND
ISSUE EXAMPLE THAT MIGHT FIT, I STRUGGLE TO THINK OF A PLACE WHERE ANY SORT OF SINGLE
PHOTO MIGHT BE APPROPRIATE IN THE TRIAL PREPARATION PROCEEDINGS. ASSOCIATE
JUSTICE ANNE M. PATTERSON: SO IF SOMEBODY IDENTIFIES THEIR COUSIN WHOM THEY HAVE KNOWN
SINCE CHILD MOOD, UNDER ANY CIRCUMSTANCES, IS IT ACCEPTABLE TO SHOW THAT WITNESS THE
PHOTOGRAPH. MR. VAN JURA: IN THAT CASE IT MIGHT BE DIFFICULT FOR A DEFENDANT
TO CARRY HIS BURDEN TO SHOW THAT THAT VERY SUGGESTIVE CIRCUMSTANCE LATER TAINTED THE IN
COURT IDENTIFICATION. ASSOCIATE JUSTICE ANNE M. PATTERSON: SO FAMILIARITY
COULD BE RELEVANT TO THE QUESTION OF EXTRAORDINARY CIRCUMSTANCES. MR.
VAN JURA: I SUPPOSE SO, YOUR HONOR. ASSOCIATE JUSTICE ANNE M. PATTERSON: I'M
NOT SAYING. I'M NOT SAYING A PARTICULAR SITUATION BUT IS NA A FACTOR THAT COULD BE PART
OF THE MIX. MR. VAN JURA: I BELIEVE SO AND IT CERTAINLY WOULD BE A FACTOR
THAT WOULD BE RELEVANT TO ASSESS WHETHER THE LATER COURT IDENTIFICATION HAD BEEN TAINTED
BEYOND ANY HOPE OF REPAIR. SOMEBODY THAT YOU KNOW SO WELL R MAYBE YOU COULDN'T REALLY
TAINT IDENTIFICATION. I WOULD THINK MY WIFE, IF SHE WERE PUT ON TRIAL, NO MATTER HOW MANY
TIMES I HAD SEEN HER AND NO MATTER HOW SUGGESTIVE THINGS GOING UP TO THAT POINT, I KNOW
HER SO WELL, I HAVE SEEN HER SO MANY YEARS IT'S GOING TO BE DIFFICULT FOR THE DEFENSE
TO CARRY ITS BURDEN THAT IT WAS TAINTED BY EVEN THOUGH THINGS THAT CAME BEFORE, EVEN THOUGH
THEY WERE OBVIOUSLY IN OVERWHELMINGLY SUGGESTIVE OTHERWISE. CHIEF JUSTICE STUART
RABNER: IT'S AN INTERESTING POINT BUT IT'S AN LUKELY SCENARIO IN REALITY BECAUSE WHAT
ATTORNEY ON EITHER SIDE WOULD ASK A NEED TO SHOW YOU A PHOTO OF A CLOSE RELATIVE WHO
YOU'VE KNOWN YOUR WHOLE LIFE. MR. VAN JURA: EXACTLY RIGHT YOUR HONOR SO I
COME UP BLANK IN ANSWER TO YOUR HONOR'S HYPOTHETICAL SCENARIO. WHEN WOULD THERE BE
APPROPRIATE CIRCUMSTANCES TO SHOW A SINGLE PHOTO?^ MAYBE NEVER. CHIEF JUSTICE STUART
A. RABNER: TALK TO US ABOUT THE SOCIAL SCIENCE THAT HE EXISTS WHETHER PRE OR POST HEND
ERSON FOCUSING ON SITUATIONS THAT ARE SIMILAR TO WITNESS PREP, IN OTHER WORDS, WE HAVE HAD
AN IDENTIFICATION DONE, APPROPRIATELY, WITH FULL DISCLOSURE AND THEN AN EXTENDED PERIOD OF
TIME LATER THERE'S AN EFFORT TO REFRESH A WITNESS'S RECOLLECTION. IS THERE SOCIAL
SCIENCE THAT BEARS ON THAT SITUATION. MR. VAN JURA: THERE IS, YOUR HONOR, AND THE
STATE'S POSITION IN THE BRIEF IS THAT THERE'S SUCH THING AS REFRESHING RECOLLECTION OF
AN IDENTIFICATION AND WHAT I SUGGEST TO THE COURT IS THAT'S NOT REALLY A THING. WHAT YOU'RE
REALLY DOING IN ANY SITUATION YOU'RE TRYING TO REFRESH A RECOLLECTION OF AN IDENTIFICATION
IS YOU ARE SOMEHOW IMPACTING THAT RECOLLECTION. THE SCIENCE HAS DISCOVERED 3 POSSIBLE
EFFECTS THAT TAKE PLACE WITH 3. 1 IS THE MEMORY SOURCE ERROR. THAT'S WHERE A WITNESS UNWIT
TINGLY RECOGNIZES A PERSON FROM A PRIOR IDENTIFICATION PROCEDURE NOT FROM THE CRIME
ITSELF. MAY NOT EVEN BE AWARE OF IT. ASSOCIATE JUSTICE LEE A. SOLOMON: THEY ARE.
THAT'S EXACTLY WHAT THEY ARE DOING. THAT'S THE PICTURE THAT I PICKED OUT LAST TIME. THEY ARE
NOT IDENTIFYING FROM THE CRIME. THEY ARE IDENTIFYING FROM THE PRIOR PHOTOGRAPH SO
THAT'S EXACTLY WHAT THEY ARE DOING. MR. VAN JURA: AND SO YOUR HONOR, IF WE
COULD TEASE OUT THE MEMORY SOURCE ERROR AND BE SURE THAT THAT'S ALWAYS WHAT'S GOING ON
IN THIS PARTICULAR SITUATION, THE BALANCE MIGHT BE DIFFERENT BUT WE HAVE OTHER POSSIBLE
ERRORS. THE COMMITMENT. ASSOCIATE JUSTICE LEE A. SOLOMON: WAIT A MINUTE. GO
BACK TO MEMORY SOURCE ERROR. HOW DOES THAT APPLY WHEN THEY WITNESS THE CRIME, THEY'VE
IDENTIFIED THE DEFENDANT IN THE PHOTO ARRAY SOMETIME NOT TOOLING AFTER THE CRIME. THEY
PICK OUT IN PREPARATION A PHOTO AND SAY THAT'S THE PICTURE I PICKET OUT. HOW IS THAT IN
ANY WAY INFLUENCING HOW THEY IDENTIFIED THE DEFENDANT IN THE PHOTO ARRAY?^.
MR. VAN JURA: WELL, AGAIN, YOUR HONOR, THE COMMITMENT EFFECT ERROR WHICH I THINK IS
RELATED TO THE MEMORY SOURCE ERROR IS THE NOTION THAT THE WITNESS WILL DOUBLE DOWN AND
SAY I PICKED THIS PHOTO BEFORE I'M GOING TO PICK THIS PHOTO AGAIN. NOW THERE MAY BE PROBLEM
OF WHAT IS THE ORIGINAL SOURCE OF THAT MEMORY. IS IT THE CRIME OR IS IT THE PROCEDURE?^.
ASSOCIATE JUSTICE LEE A. SOLOMON: ALL RIGHT. IF THEY REMEMBERED THAT THEY
PICKED OUT THAT PHOTO, IN THE ORIGINAL PHOTO ARRAY, YOUR OBJECTION IS COMPLETELY
IRRELEVANT BECAUSE THAT'S ALL YOU'RE ASKING. IS THAT THE PICTURE YOU PICKED OUT IN THE
ORIGINAL PHOTO ARRAY?^ THAT'S ALL THEY ARE ASKING SDRCHLT REFRESH YOUR RECOLLECTION. IS
THAT THE PICTURE YOU PICKED OUT?^ IT HAS NOTHING -- DO YOU GET WHAT I'M SAYING. THAT'S
NOT WHAT YOU'RE TALKING ABOUT. MR. VAN JURA: SO I THINK I I GET YOUR POINT
WITH RESPECT TO WHY THE MEMORY SOURCE ERROR ISN'T A PROBLEM IN THAT CIRCUMSTANCES BUT
WHAT DOES IT DO TO THE ANTICIPATED IN COURT IDENTIFICATION THAT WILL COME LATER?^ THAT'S
WHAT THE STATE WANTS RIGHT?^ THE STATE WANTS AN IDENTIFICATION THEY WANT THIS GUY SITTING
AT THE TABLE BUT WE DON'T KNOW AT THAT POINT WHERE THE MEMORY SHOULD BE ATTRIBUTED.
CHIEF JUSTICE STUART RABNER: YOU SAID THERE WERE SEVERAL ERRORS. MR. VAN JURA:
ANOTHER IS THE COMMITMENT ERROR. CHIEF JUSTICE STUART RABNER: SECOND.
MR. VAN JURA: AND THE THIRDS INHERENT SUGGESTIVENESS OF REPEATED IDENTIFICATION
PROCEDURES THAT'S WHERE THE INFORMATION IS LEAKED TO THE IDENTIFIER. ASSOCIATE
JUSTICE ANNE M. PATTERSON: WHAT IS THE SECOND 1 I'M SORRY. MR. VAN JURA: THE
SECOND 1 IS COMMITMENT EFFECT. CHIEF JUSTICE STUART RABNER: SO MANY OF THE
STUDIES TAKE THAT 1 WITH RESPECT TO COMMITMENT EFFECT, DEALT WITH SOMEBODY LOOKING AT
A MUGSHOT BOOK AND THEN SAW A PHOTO AND THEN SAW THE PHOTO AGAIN THE NEXT DAY AND THEN
ULTIMATELY MADE THEIR FIRST IDENTIFICATION. ARE YOU AWARE OF STUDIES THAT DEAL WITH THIS
SITUATION SIMILAR TO THE 1 WE'RE DISCUSSING IN THIS CASE. AN IDEA WAS MADE, TAKE PETERSON
AND THEN LONG TIME LATER DURING PREP, THERE'S A SHOWING OF THAT PHOTO. ARE THERE STUDIES
THAT DEAL WITH THAT SORT OF SITUATION?^. MR. VAN JURA: WELL I CAN'T SAY THAT
THERE'S NOT. I CAN'T RECALL CITING THEM IN MY BRIEF. CHIEF JUSTICE STUART
RABNER: THAT WASN'T A TRICK QUESTION. I WAS LOOKING FOR A HELPFUL ANSWER. THAT'S ALL.
MR. VAN JURA: I'D LOU LOVE TO PROVIDE IT PRCHLT I DON'T THINK IT'S.
ASSOCIATE JUSTICE RACHEL WAINER APTER: ARE THERE ANY OTHER JURISDICTION THAT HAVE BARRED
THAT. SO SOMEONE PICKED SOMEONE OUT OF A PHOTO ARRAY THAT COMPLIANT WITH HENDERSON OR
WHATEVER THE LAW IS IN THAT JURISDICTION AND THEN 2 YEARS LATER RIGHT BEFORE A TRIAL IT'S
SHOWN THE SAME PHOTO ARRAY AGAIN AS PART OF, YOU KNOW, TRIAL PREP. ARE THERE ANY JURISDICTIONS
THAT BAR THAT. MR. VAN JURA: WELL, AND PEOPLE V MARSHALL THERE'S A SLIGHT
VARIATION OF THAT. THAT'S THE NEW^YORK'S HIGHEST COURT CASE. THEY REJECTED THE NOTICE
THAT THERE'S SUCH A THING AS A PRETRIAL PREPARATION WADE EXCEPTION, IF YOU WILL. THE
COURT HELD THE CONCERN THAT PRETRIAL IDENTIFICATION WILL RESULT IN WITNESS ERROR
IS REGARDLESS OF THE PROSECUTOR'S MOTIVE AND ANOTHER COURT I THINK MIGHT ANSWER THE
QUESTION A LITTLE MORE CLEARLY WHETHER THE PROCEDURE IS INTENDED TODAY REFRESH OR ANCHOR
THE IDENTIFICATION OF THE WITNESS IN THE WITNESS'S MEMORY OR TO INTEND TO AMENT.
RELEVANT INQUIRY REMAINS THE SAME. WAS THE OBSERVATION OF DEFENDANT UNDULY SUGGESTIVE
RENDERING THE SUBSEQUENT IDENTIFICATION UNRELIABLE. ASSOCIATE JUSTICE
RACHEL WAINER APTER: SORRY, I THOUGHT PEOPLE V MARSHALL WAS NOT ABOUT ANYBODY WHO WAS
IDENTIFIED IN A PHOTO ARRAY AND THEN RESHOWN THE ARRAY TRCHLT I THOUGHT THE FACTS IN PEOPLE
V MARSHALL WAS SOMEONE IS AASSAULTED ON A NEW YORK CITY BUS. THEY CANNOT FIND THE SUSPECT.
2 MONTHS LATER THE PERSON WHO WAS ASSAULTED HAPPENS TO BE IN A HOSPITAL OR A HOSPITAL
PHARMACY, NOT TOTALLY CLEAR WHEN SHE RANDOMLY CEASE THE PERSON WHO ASSAULTED HEARDMENT
CALLS THE POLICE AND SAYS THE PERSON WHO ASSAULTED ME IS HERE, THEY COME AND THEY
ARREST HER. AND THEN 16 MONTHS LATER RIGHT BEFORE THE COURT APPEARANCE IS SHOWN JUST 1
PHOTO ON THE DAY THAT THE DEFENDANT WAS ARRESTED SO MY QUESTION WAS NOT I DON'T THINK
SIMILAR AT ALL TO PEOPLE V MARSHALL. MY QUESTIONS SOMEONE -- THERE'S A PHOTO ARRAY THAT IS
COMPLIANT WITH HENDERSON OR WHATEVER THE THE LAW OF THE JURISDICTION IS. SOMEONE PICKS
OUT A PHOTO IN THE ARRAY AND THEN 16 MONTHS LATER SO THAT CAN BE THE SAME, RIGHT BEFORE
A TRIAL, IS SHOWN THE SAME PHOTO ARRAY AS PART OF, YOU KNOW, I'M JUST REFRESHING YOUR
RECOLLECTION, DO YOU REMEMBER THAT YOU PARTICIPATE IN THIS PHOTO ARRAY. ANY
JURISDICTION THAT PROBTSD SOMETHING LIKE THAT. MR. VAN JURA: I HAVEN'T FOUND
SOMETHING DPAKTDLY LIKE THAT BUT THAT'S WHY I PREFACED MY ANSWER BY SAYING THAT MARSHALL
IS DIFFERENT IN THAT REGARD BUT A LOT OF THE UNDERLYING CONCERNS ARE THE SAME. THERE'S
NO RERNING OF A RECOLLECTION. ASSOCIATE JUSTICE RACHEL WAINER APTER: BUT
IN MARSHALL IT'S A SINGLE PHOTO SO IT'S THE SAME AS SHOWING A PHOTO ARRAY AGAIN.
MR. VAN JURA: TRUE, TRUE BUT THE PRINCIPAL THAT THERE IS NO THING THAT EXISTS THAT'S PURELY
AN INNOCUOUS REFRESHING OF RECOLLECTION. ASSOCIATE JUSTICE RACHEL WAINER APTER:
AND IN MARSHALL DON'T THEY ACTUALLY HOLD THAT ITS FINE ANYWAY BECAUSE THERE'S AN INDEPENDENT
SFORSZ THE INDEPENDENT I.D.. INDEPENDENT SOURCE SHE SAW THE PERSON ORIGINALLY AT THE HOSPITAL
PHARMACY. SO EVEN THOUGH THEY ARE PERHAPS SAYING THERE'S A PROBLEM WITH THIS, THEY ARE
SAYING IT NEVER REALLY MATTERS BECAUSE AS LONG AS YOU IDENTIFIED THE PERSON FIRST THEN
WE'RE GOING TO CONSIDER THAT AN INDEPENDENT SOURCE TO YOUR IN COURT I.D. MR.
VAN JURA: ON THE FACTS OF THAT CASE, THAT'S TRUE, THEY FOUND IT NOT TO BE HARMFUL ERROR.
AND THEY ALSO FOUND IT NOT TO INVOKE CERTAIN STATUTORY PROTECTION THAT EXIST IN NEW^YORK
SO THE CASE IS DISTINGUISHABLE ON SEVERAL POINTS. I JUST WANTED TO TEASE OUT THE GENERAL
PRINCIPLE THAT I THINK IS RELEVANT AND APPLICABLE HERE THAT IS THAT SOMEBODY REMEMBERS
IS ITSELF SOME SORT OF EXERCISE IN SOME SORT OF INFLUENCE OVER THAT MEMORY. THAT'S REALLY
THE THE KEY POINT THAT I WANTED TO HAMMER HOME F. CHIEF JUSTICE STUART RABNER:
IN THIS CASE, SINGLE PHOTOS WERE SHOWN, THE FACEBOOK FOE STOW SHOWN, THE EVIL CAN HE
NEEFL PHOTO WAS SHOWN DURING PRETRIAL MEETING AND MAYBE MS. LORD WILL HELP US ON REBUTTAL
IF YOU CAN'T, WERE PHOTO ARRAYS RESHOWN TO WITNESSES ACCORDING TO YOUR KNOWLEDGE.
MR. VAN JURA: SO THE RECORD COULD BE CLEARER ON THIS, YOUR HONOR. IT APPEARS THAT
WITH RESPECT TOW PETERSON AND SCOTT JUNIOR, SINGLE PHOTOS FROM THE ARRAY WERE SHOWN BUT
EVEN ON THAT POINT THERE'S SOME DISCREPANCY AS TO HOW MANY TIMES THAT MIGHT HAVE HAPPEN.
CHIEF JUSTICE STUART RABNER: NOTHING ABOUT A WHOLE PHOTO ARRAY BEING RESHOWN.
MR. VAN JURA: RIGHT. IT APPEARS THAT A WHOLE PHOTO ARRAY WAS NOT RESHOWN.
IT APPEARS THAT A PHOTO OF DEFENDANT WAS SHOWN TO PETER AND SCOTT JUNIOR AND PERHAPS SCOTT
HENDRIX, NOT THE WHOLE ARRAY. AND OF COURSE WITH RESPECT TO MAMG THUSZ AND SCOTT 3 WHAT WAS
SHOWN DURING THE PRESENTATION SESSION WERE 2 DIFFERENT FACEBOOK PHOTO 1 OF THE EVIL K
N E IV E L JACKET AND 1 OF S14. IF THE COURT DOES HAVE ANY OTHER QUESTIONS,
I KNOW MR. MARKS ALSO HAS A BIT TO SAY. CHIEF JUSTICE STUART RABNER: THANK
YOU. MR. MARX. MR. VAN JURA: THANK YOU, YOUR HONOR. MR. MARX: GOOD
AFTERNOON. MAY IT PLEASE THE COURT R MY NAME IS IAN MARX. I'M A SHAREHOLDER WITH THE
LAW FIRM GREENBERG TRAURG AND WE HAVE THE PRIVILEDGE OF REPRESENTING THE INNOCENCE
PROJECT AND THE AMERICAN CIVIL LIB BERTSZ UNION OF NEW JERSEY AS FRIENDS OF THE COURT IN THIS
CASE. OVER A DECADE AGO, THIS COURT MEANINGFULLY, IN STATE V. HENDERSON. ACKNOWLEDGING
AND EMBRACING THE WELL DEVELOPED SCIENCE OF MEMORY AND RELATEDED STUDIES ON EXTERNAL
FACTORS THAT AFFECT IDENTIFICATIONS. ' THIS ADOPTED RIGOROUS SAFEGUARDS FOR OUT OF
COURT WITNESS IDENTIFICATIONS. SINCE THEN, THIS COURT HAS APPLIED ITS NEW
FRAMEWORK TO WITNESS IDENTIFICATION CASES AND PROMOTED NEW RULES ASSOCIATED WITH
IDENTIFICATION PROCEDURES REQUIRING RECORDATION AND PRETRIAL HEARINGS FOR THOSE THAT FALL
WITHIN THE AM BIT OF HENDERSON. THIS COURTLESS HAS ADDRESSED TAECHLTS BY PROSECUTORS TO
USE TACTICS DESIGNED TO EVADE THE HENDERSON PROTECTIONS SUCH AS THE TRIAL PREPARATION
TACTIC USED HERE. MOST RECENTLY, EARLIER THIS YEAR IN STATE V. WATSON THE
COURT ESTABLISHED NEW GIELSZ FOR FIRST TIME IN COURT WITNESS IDENTIFICATIONS. IN WATSON,
THE COURT ALSO TOUCHED UPON SOME OF THE TRIAL PREPARATION TACTICS THAT WERE AT USE HERE
SPECIFICALLY HOLDING THAT AND I EMPHASIZE THIS BECAUSE IT REALLY IS RELEVANT TO THE CHIEF
JUSTICE'S QUESTION EARLIER HOLDING THAT PROSECUTORS MUST DISCLOSE IN WRITING ANYTHING
DISCUSSED WITH A WITNESS DURING TRIAL PREPARATION THAT RELATES TO AN UPCOMING IN COURT
IDENTIFICATION. IN ADDITION, THE COURT IN WATSON HELD THAT IF WITNESSES DURING
TRIAL PREPARATION ARE SHOWN PHOTOS THEY HAD PREVIOUSLY VIEWED AT PRIOR OUT OF COURT
IDENTIFICATIONS , THAT MUST BE DISCLOSED AS WELL. SO WHILE THE HENDERSON TEST
CONTINUES TO BE FINE TUNED AND WAS TOUCHED UPON IN WATSON RSHGS THIS COURT HAS NOT YET
DIRECTLY DECIDED THE APPLICABILITY OF THOSE STANDARDS TO TRIAL PREPARATION.
ALTHOUGH TRIAL PREPARATION IMPLICATES THE SAME CONCERNS THAT PROMPTED THIS COURT TO
INSTITUTE THE HENDERSON SAFEGUARDS, DEFENDANT'S CURRENTLY DO NOT RECEIVE THE SAME DUE PROCESS
PROTECTIONS IN THE TRIAL PREPARATION CONTEXT AS THEY DO IN OTHER OUT OF COURT IDENTIFICATION
SITUATIONS. THE COURT NOW HAS AN OPPORTUNITY TO BRIDGE THAT GAP AND CLARIFY THAT DEFENDANTS
ARE EQUALLY ENTITLED TO DUE PROCESS PROTECTIONS WHEN THE STATE IS ENGAGED IN TRIAL
PREPARATION. ASCRIBED, EXHAUST TIFL IN OUR BRIEF, THE SCIENCE OF MEMORY AND
THE SUGGESTIVE FACTORS MANY EMBEDDED IN THE THE TRIAL PREPARATION PROCESS ESTABLISH THAT
THERE'S A HEIGHTENEDED RISK OF A WITNESS IDENTIFIED THE DEFENDANT AS BEING RESPONSIBLE
FOR THE CRIME DURING TRIAL IF THEY ARE SHOWN THE DEFENDANT'S PHOTOGRAPH DURING TRIAL
PREPARATION. THIS PRACTICE CAN LEAD TO MISTAKEN IDENTIFICATION AND BY EXTENSION,
WRONGFUL CONVICTION WHERE THE WITNESS LATER IDENTIFIES THE DEFENDANT IN COURT.
THIS CASE AFFORDS THE COURT AN OPPORTUNITY TO PROHIBIT SUCH SCIENTIFICLY UNRELIABLE TRIAL
AGO TACTICS AND TO PROTECT THE CRIMINALLY ACCUSED FROM MISTAKEN IDENTIFICATIONS THAT ARE
THE RESULT OF INEVITABLE MEMORY DEFICITS AND THE SUGGESTIVE NATURE OF. HERE
NO TO CIRCUMVENT THIS COURT'S MANDATES ON PROOR IDENTIFICATION PROCEDURES BY CONDUCTING
WHAT AMOUNTS TO A SHOWUP IDENTIFICATION THROUGH THE DISPLAY OF A DEFENDANT'S PHOTOGRAPH
TO AN EYEWITNESS IN ADVANCE OF TRIAL. ACCORDINGLY, WE ADVOCATE THAT THE COURT
SHOULD ADOPT THE PRO SE PROHIBITION AGAINST LAW ENFORCEMENT, PROSECUTORS OR PLEASE, USING
DEFENDANT'S PHOTOGRAPHS DURING WITNESS PREPARATION FOR TRIAL. SUCH A RULE
WOULD APPROPRIATELY PROTECT THE INTEGRITY OF CRIMINAL TRIALS UPHOLD FOUNDATIONAL
CONSTITUTIONAL RIGHTS AND COMBAT MISS IDENTIFICATION. ASSOCIATE JUSTICE
LEE A. SOLOMON: THEY'VE ALREADY IDENTIFIED THE DEFENDANT. YOU'RE CONCERNED ABOUT MISS
IDENTIFICATION WHEN THE PHOTO THAT THEY ARE NOW SEEING IN PREP IS THE SAME PHOTO THEY HAVE
NOW PICKED OUT OF A HENDERSON COMPLIANT PHOTO ARRAY PRETRIAL IDENTIFYING THE DEFENDANT.
WE'VE GOT THE I.D.. HOW DOES THIS RULE YOU'RE ASKING FOR RELATE IN ANY WAY TO A FIRST
TIME IDENTIFICATION?^ WE DON'T HAVE THAT. WE'RE NOT TALKING ABOUT THAT. IT. MR.
MARX: WELL YOUR HONOR'S HYPOTHETICAL APPLIES TO SOME OF THE WITNESSNESS THIS CASE BUT NOT
ALL. ASSOCIATE JUSTICE LEE A. SOLOMON: NO, NO, I'M JUST TALKING GENERALLY
YOU'RE SAYING NO PHOTOGRAPH OF DEFENDANT PRETRIAL STRCHLT I THINK WHAT WE'VE BEEN TALKING
ABOUT IS, AT LEAST IN MANY INSTANCES, A PRETRIAL HENDERSON COMPLIANT PHOTO ARRAY, AT LEAST
WHAT I HAVE BEEN TALKING ABOUT, THE WITNESS PICKS OUT THE DEFENDANT FROM THE PHOTO ARRAY.
WE'VE GOT THAT,. AS MS. LORD SAID A POLICE OFFICER ADMINISTERING COULD COME IN AND
TESTIFY ABOUT IT. PICKED OUT THE DEFENDANT. NOW PRETRIAL THEY ARE SEEING THE PHOTOGRAPH
THAT THEY PICKED OUT OF AN ARRAY AND BEING ASKED, THEY'VE ALREADY MADE THE I.D.. IT'S
COMING IN. IS THAT THE PERSON YOU PICKED OUT OF THE PRIOR PHOTO ARRAY?^ THAT'S NOT ANYTHING
LIKE WHAT YOU'RE TALKING ABOUT R MASHGSZ I APPRECIATE YOUR HONOR'S QUESTION AND IT
ALLOWS ME TO CLARIFY MY POSITION AND IN RESPONSE TO THAT DIRECTLY, ASSUMING THE HYPOTHETICAL
WHERE THERE'S BEEN A PROPER HENDERSON COMPLIANT PHOTO ARRAY USED, THE DEFENDANT, THE WITNESS
IDENTIFIES THE DEFENDANT. THE WHOLE PURPOSE FOR THE TRIAL PREPARATION PROCESS IS TO BOLSTER
THIS WITNESS'S TESTIMONY AT TRIAL BECAUSE IT'S ANTICIPATED THAT THIS WITNESS IS GOING
TO COME IN AND TESTIFY AT TRIAL AND MAKE AN IDENTIFICATION AT TRIAL RECHLT.
ASSOCIATE JUSTICE LEE A. SOLOMON: NOT BOLSTER. JUST REFRESH. MR. MARX: THE
SCIENCE SHOWS THE WITNESS'S MEMORY IS NOT GETTING BETTER OVER TIME MUCH IT IS NOT GETTING
ANY BETTER THAN IT WAS 2 YEARS PRIOR WHEN THE PROPER IDENTIFICATION WAS MADE.
ASSOCIATE JUSTICE LEE A. SOLOMON: AGREED. MR. MARX: ASSOCIATE JUSTICE LEE
A. SOLOMON: BECAUSE ITS NOT FOR THE PURPOSE OF IDENTIFYING THE DEFENDANT INITIALLY. IT'S
FOR THE PURPOSE OF SAYING IS THAT THE PICTURE YOU PICKED OUT IN THE THE PHOTO ARRAY. DOES
THIS REFRESH YOUR RECOLLECTION?^ YEAH, IT REFRESHES THE RECOLLECTION FOR THE PURPOSES
OF TESTIFYING AT TRIAL. LIKE ALL KINDS OF OTHER DOCUMENTARY EVIDENCE REFRESHES RECOLLECTION.
MR. MARX: BUT THIS ISN'T ALL KINDS OF DOCUMENT OF THE THIS IS A SPECIAL KIND
OF EVIDENCE BECAUSE WITNESS IDENTIFICATION IS SO CRUCIAL AT TRIAL. HAVING A WITNESS FROM
THE STANDPOINT TO THE DEFENDANT AND SAY THAT'S THE MAN WHO WAS THE SHOOTER IS SO COMPELLING
AND SO PER SIDEWAYSIVE THAT THE CONSTITUTION PROVIDES DEFENDANTS WITH SPECIAL PROTECTIONS
TO ENSURE THAT. ASSOCIATE JUSTICE LEE A. SOLOMON: YOU'RE ASKING THAT THAT
IN COURT IDENTIFICATION IN ALL INSTANCES BE PRECLUDED. DOESN'T MATTER WHETHER THERE'S
BEEN A PHOTO ARRAY PRETRIAL. ARE YOU ASKING THAT THAT IN COURT I.D., THAT'S THE PERSON,
I'M NOT SUGGESTING IT'S MY MOTHER, IT'S MY FATHER, ITDZ MY SISTER, IT'S MY BROTHER BUT
THAT PERSON, THAT'S THE PERSON WHO COMMITTED THE ROBBERY. THAT COULD NEVER HAPPEN.
MR. MARX: WE'RE NOT ASKING FOR THAT TODAY. WE'RE ASKING IF AN IDENTIFICATION IS GOING TO BE
DONE IN COURT, IF THE WITNESS IS GOING TO POINT TO THE DEFENDANT IS THE 1 WHO DID IT,
THAT IT BE SCIENTIFICLY RELIABLE AND NOT WHICH CAN HAPPEN THROUGH THE USE OF PHOTOGRAPHS
DURING PRETRIAL PREPARATION. CHIEF JUSTICE STUART RABNER: THE CONCERN THAT I
UNDERSTOOD FROM YOUR PRESENTATION AND MR. VAN JURA'S WAS THAT SHOWING SOMETHING AFTER
TRIAL PREP AFTER A FULLY COMPLIANT PHOTO ARRAY IDENTIFICATION PROCEDURE COULD AFFECT THE
IN COURT I.D., COULD BOLSTER THE CONFIDENCE LEVEL, COULD DIRECT THE WITNESS, SUGGEST
TO THE WITNESS WHOM TO SELECT IN THE COURTROOM. MR. MARX: ABSOLUTELY YOUR HONOR.
THE COURT: NOT SO MUCH INTRODUCING THE PHOTO ARRAY TO THE WITNESS IN FRONT
OF THE -- BUT THE. MR. MARX: CORRECT. IT MAKES THE IN COURT IDENTIFICATION
THE PRODUCT OF, AT LEAST IN PART, AN UNDULY SUGGESTIVE PROCESS AND THERE'S NO NEED FOR
IT AND THERE'S NEVER A GOOD REASON FOR IT. ASSOCIATE JUSTICE LEE A. SOLOMON:
ISN'T ALL IT DOES IS POINT OUT THAT GUY SITTING THERE IN THAT CHAIR, THAT'S THE PERSON
I PICKET OUT OF THE PHOTO ARRAY, ISN'T THAT ALL ITS SAYING. MR. MARX: I DON'T KNOW
WHAT THE PROSECUTION WOULD BE ASKING AT TRIAL. ASSOCIATE JUSTICE LEE A. SOLOMON:
LET'S ASSUME HE ASKED THAT QUESTION. IS THAT ALL RIGHT?^. MR. MARX: I DON'T THINK
SO, YOUR HONOR. I DON'T THINK BECAUSE THE INTENDED IMPACT OF THE QUESTION ISN'T LIMITED
TO IS THIS SOMETHING THAT YOU POINTED OUT 2 YEARS AGO. IT IS, INSTEAD, IS THE DEFENDANT
THE 1 WHO PULLED THE TRIGGER. CHIEF JUSTICE STUART RABNER: DO YOU HAVE AN
ANSWER TO THE QUESTION OF MR. VAN JURA TO THE SOCIAL SCIENCE, ARE THERE STUDIES THAT DEAL
WITH SORT OF SCENARIO R. MR. MARX: THE HIGHLY SPECIFIC SCENARIO, IF THERE WERE
WE WOULD HAVE INCLUDED IT IN THE MATERIALS IN OUR BRIEF. I THINK THE GENERAL SOCIAL SCIENCE,
THOUGH, SUPPORTS THE PREMISE THAT THE MEMORY DOES NOT GET BETTER OVER TIME. IT IT ONLY
ERODES AND THAT THERE'S NO NONSUGGESTIVE REASON FOR THE TRIAL TACTIC -- THE TRIAL PREPARATION
TACTIC OF USING PHOTOGRAPHS TO BOLSTER AND PRIME THE WITNESS FOR TESTIFYING. THE
COURT:^ ARE THERE EXTRAORDINARY CIRCUMSTANCES THAT MIGHT JUSTIFY SHOWING A WITNESS DURING
THEIR PREP SESSION A PHOTO. MR. MARX: WE'VE ALSO STRUGGLED, WE'RE TRYING TO
COME UP WITH AN ANSWER TO THAT QUESTION AND THE ATTORNEY GENERAL, FIRST OFF, THE ATTORNEY
GENERAL AGREES THAT THE NONPREVIOUSLY SHOWN PHOTO SHOULD NEVER BE SHOWN AND WE AGREE WITH
THAT. THE ATTORNEY GENERAL APPEARS TO WANT TO PRESERVE THE CAPACITY TO IN
EXTRAORDINARY CIRCUMSTANCES USE THE PHOTOS BUT NO EXAMPLES ARE PROVIDED. CHIEF
JUSTICE STUART RABNER: THEY ARE GOING TO ASK THEM. MR. MARX: TO THE EXTENT
THAT THEIR RESPONSE WILL BE THAT WHERE THERE'S BEEN AN EXTRAORDINARY PASSAGE OF TIME THAT
WOULD JUSTIFY USE OF THE PHOTOS, OUR RESPONSE WOULD BE THAT IT DOES NOT. THAT THE REMEDY
THERE WOULD BE TO CALL THE PERSON WHO ADMINISTERED THE TEST INITIALLY AND THAT IS
HOW THE JURY CAN HEAR THAT A WITNESS PREVIOUSLY IDENTIFIED THE DEFENDANT. CHIEF
JUSTICE STUART RABNER: QUESTIONS ANYONE?^. MR. MARX: THERE WAS A HYPOTHETICAL
THAT YOUR HONOR ASKED MS. LORD REGARDING THE MEMORIALIZATION OF DISCUSSIONS CONCERNING
THE ADMINISTRATION OF A PRIOR IDENTIFICATION PROCEDURE SEPARATE AND APART FROM THE USE
OF PHOTOGRAPHS. CHIEF JUSTICE STUART RABNER: YES. I BELIEVE THAT'S COVERED
BY WATSON. MR. MARX: I BELIEVE THAT'S COVERED BY WATSON SO YES, THAT SHOULD BE
RECORDED BECAUSE IT'S A DISCUSSION THAT ANTICIPATES AN IN COURT IDENTIFICATION EVEN
IF PHOTOGRAPHS AREN'T BEING USED IT SHOULD BE MEMORIALIZED AND DISCLOSED UNDER WATSON.
CHIEF JUSTICE STUART RABNER: THANK YOU. MR. MARX: THANK YOU.
CHIEF JUSTICE STUART RABNER: MS. HANDY. MS. HANDY: GOOD AFTERNOON,
YOUR HONORS, MAY IT PLEASE THE COURT. THE PROSECUTOR'S DISPLAY OF PICTURES DURING
PRETRIAL PREPARATION MEETINGS DURING SPECIFIC TO THIS CASE DID NOT TAINT ANY OF THE WITNESS
IN COURT IDENTIFICATIONS. TO START, CONTRARY TO WHAT DEFENDANT ASSERTS HERE, THIS CASE
WAS NOT A WHO DONE IT. THIS CASE WAS NOT A CASE IN WHICH THIS COURT SEES AND WHICH
IDENTIFICATION IS TRULY AN ISSUE. SPECIFICALLY THE THE STATE WOULD EMPHASIZE THE THE DIFFERENCE
IN FACTUAL SITUATION BETWEEN THIS AND THIS COURT'S RECENT DECISION IN WATSON. THIS IS
NOT A CASE WHERE A STRANGER WHOSE FACE IS PARTIALLY OBSTRUCTED APPROACHES A VICTIM IN
AN ALLEY UNKNOWN TO THEM, COMMITS A CRIME, HAS SOME DESCRIPTIVE FEATURE AND THEN 2 YEARS
LATER SOMEHOW IS IDENTIFIED AND THE WITNESS OR THE VICTIM MAKES AN IDENTIFICATION THROUGH
AN ARRAY IN THAT PASSAGE OF TIME. INSTEAD HERE, THE CRIME HERE OCCURRED AT
A BAR WHERE THE THE DEFENDANT FREQUENTED. NUMEROUS PATRONS AND EMPLOYEES WITNESSED THE
EVENTS OF THAT NIGHT. 7 OF WHOM TESTIFIED AT TRIAL AS TO WHAT THEY SAW AND 6 OF WHOM --
WELL 5 OF WHOM MADE IDENTIFICATIONS. THERE ARE NO ISSUES HERE OF OBSCURE LIGHTING AND
THIS OFFENSE OCCURRED CLOSELY AFTER THE DEFENDANT HAD AN ALTERCATION WITH 2 EMPLOYEES AT THAT
BAR. A CLOSED IN SPACE AND FACE TO FACE PHYSICAL ALTERCATION AND THEN WAS PHYSICALLY REMOVED
AND THEN MERE SECONDS AFTER BEING PHYSICALLY REMOVED THERE WAS NO PASSAGE OF TIME BEFORE
HE OPENED THE DOOR AND THEN SHOT THE 2 VICTIM DZ HERE. THE DEFENDANT MADE EYE CONTACT
WITH HIS VICTIMS BEFORE SHOOTING THEM AS TESTIFIED TO AND THE OUT OF COURT
IDENTIFICATIONS THAT OCCURRED HERE OCCURRED MERE HOURS AFTER THE CRIME HAD OCCURRED. AND
NOTABLY AS WELL THERE IS DNA IN THIS CASE THAT LINKED DEFENDANT'S PRESENCE TO THE SCENE.
TO PRESENT TO THIS COURT THE THE STATE ORGANIZE THE WITNESSES HERE TO BE GROUPED
INTO 3 CATEGORIES. THE FIRST CATEGORY IS CATEGORY 1. WITNESS WHOSE THE DEFENDANT ALLEGES
WERE SHOWN A QUOTE NEW PHOTO DURING PRETRIAL PREPARATION AND THE MAIN WITNESS THAT THIS
AFFECTS IS WILLIAM MATTHEWS WHO WAS SHOWN PHOTOGRAPH D 11 IDENTIFIED IN THE RECORD.
MATTHEWS FOR THE COURT'S KNOWLEDGE IS THE VICTIM WHO WAS DIRECTLY INVOLVED IN
THE THE PHYSICAL ALTERCATION WITH THE DEFENDANT SO THE PHYSICAL REMOVING OF HIM FROM THE
BUILDING AND THEN HAD HIM COME BACK OPEN UP THE DOOR AND WAS SHOT IN THE HEAD. HE DESCRIBED
THE DEFENDANT ON THE RECORD AS SOMEONE THAT HE HAD SAW AT THE BAR FROM 4 TO 5 TIMES BEFORE.
HE WAS SHOWN A PHOTOGRAPH D 11 BY THE PROSECUTOR AT A WITNESS PREP MEETING THOUGH THOUGH
THE THE DATE OF THIS MEETING IS UNCLEAR AND MATTHEWS SAYS NOTABLY WRORN YOUR HONOR,
BECAUSE I THINK THIS IS IMPORTANT, THAT WHEN QUESTIONED AT TRIAL, MATTHEWS SAID I WAS
NEVER SHOWN THAT PICTURE. CERTAINLY WHEN CONSIDERING TAINT, THE FACT THAT A
WITNESS CAN'T REMEMBER BEING A PICTURE BEING SHOWN TO THEM WORKS AGAINST THE ARGUMENT
TO THEM THAT IT WOULD LATER TAINT THEIR IDENTIFICATION. WHEN CONFRONTED
WITH THE PICTURE ON CROSS-EXAMINATION IN FRONT OF THE JURY, MATTHEWS STATED THAT IS NOT
THE PERSON WHO SHOT ME. THIS PERSON HERE GOT A BEARD. THAT PERSON THAT SHOT ME THAT NIGHT
DIDN'T HAVE A BEARD AND THEN SAYS LATER, IN FOLLOWUP THAT MAYBE IT COULD BE THE PERSON
R MOST IMPORTANTLY IN THIS MATTER REGARDING MATTHEWS, THE STATE IMPLORES TO KEEP IN MIND
THAT THE IN COURT IDENTIFICATION THAT WAS EELICITED HERE WAS ELICIT THE BY THE
DEFENDANT. THE STATE DID NOT ELICIT THAT IN COURT IDENTIFICATION. IT WAS ON RECROSS-EXAMINATION
THAT DEFENDANT ASKED THE WITNESS IF THE PERSON WHO COMMITTED THE CRIME, YOU KNOW, WHAT
IN THE COURTROOM OR I BELIEVED IT WAS PHRASE AS SOMEWHAT LIKE SO THE PERSON WHO COMMIT THAT
HAD HERE TODAY IS SOMETHING ALONG THOSE WORDS I'M PARAPHRASING AND THE WITNESS SAID ACTUALLY HE
IS, HE IS SITTING RIGHT OVER THERE. REGARDING THE EFFECTS OF MATTHEWS'S TESTIMONY
AT TRIAL, THAT SEEING D 11, WHICH AS PHOTOGRAPH OF DEFENDANT WEARING ASCRIBED BELOW, AN EVIL
NEEFL JACKET OF RED, WHITE AND BLUE, THE RECORD KWATSZ MATTHEWS INITIAL STATEMENT GIVEN
TO PLEASE AT THE HOSPITAL, HE IDENTIFIES THE DEFENDANT AS WEARING AN EVIL K N E IV A L
JACKET. HE SAID THAT IT IS RED, WHITE AND BLUE. THE DEFENDANT CONFRONTED HIM WITH THIS
BECAUSE WHEN HE TESTIFIED AT TRIAL MATTHEWS SAID IT COULD HAVE BEEN AN EVIL K NEEFL JACKET OR
IT COULD HAVE BEEN A BLACK IF YOUR JACKET AGAIN HIGHLIGHTING THE POINT THAT THIS DEFENDANT
WAS KNOWN TO THEM. THEY KNEW HIM WELL ENOUGH THAT WHEN HE CAME HERE HE EITHER WORE A RED WLIET
AND BLUE JACKET OR A BLACK IF YOUR JACKET. IT'S IMPORTANT TO INDICATE AS WELL THAT MATTHEWS
NEVER GIVES A STRONG KWAKS AS TO WHAT HE WAS WEARING THE NIGHT OF THE CRIME. IT'S CLEAR IN
REDIRECT THAT HE'S SAYING I KNOW THIS GENTLEMAN TO FREAK HERE AND WHEN HE DOES FREAK HERE HE
WHERE'S THIS JACKET OR HE WEARS A N IF YOUR JACKET. THE NEXT WITNESS THAT
SHOWN A QUOTE NEW PICTURE IS TIMOTHY SCOTT III WHO THE STAIFT R STATE WILL REFER TO TIMOTHY
SCOTT THE SON TO CLARIFY THINGS. IT'S UNDISPUTED HERE THAT HE WAS SHOWN PICTURE S14 R
TIMOTHY SCOTT III IS A BAR EMPLOYEE WHO HAD T2 INTERACTIONS WITH DEFENDANT THAT NIGHT PRIOR
TO THE SHOOTING. FIRST AT THE DOOR AND SECOND DURING THAT PHYSICAL CONFRONTATION THAT THE
STATE REFERENCE DZ. ASSOCIATE JUSTICE RACHEL WAINER APTER: I'M VOIR, CAN YOU SAY 1
MORE TIME WHAT PICTURE HE WAS SHOWN. MS. HANDY: S14, THAT IS THE FACEBOOK PICTURE
WHEN. WHEN WE SAY S14 REFERENCED AS THE FACEBOOK PICTURE. HE TESTIFIED HA HE'S FAMILIAR
WITH THE DEFENDANT AS A PATRON AT THE BAR AND THE RECORD SHOWS THAT HE RECEIVED S14 FROM AN
UNCONFIRMED WITNESS. DEFENSE COUNSEL MAINTAINS HERE THAT TIMOTHY SCOTT III WAS SHOWN THAT
PICTURE FROM VICTORIA HENDRIX INTEREST A READING OF OF THE RECORD KWATSZ THAT THAT IS NOT
CONFIRMED. VICTORIA HENDRIX IS DIRECTLY ASKED DID YOU SEND THAT PICTURE TO SCOTT III AND
NOT ONLY DOES SHE SAY I DIDN'T, SHE ALSO SAYS I'VE NEVER SEEN THAT PICTURE. I KNOW THE
MEN IN THAT PICTURE BUT I'VE NEVER SEEN THAT PICTURE. THAT'S HER TESTIMONY. AND
WHEN SCOTT III IS ASKED BY THE STATE OR I THINK ACTUALLY BY DEFENDANT ABOUT WHO SENT YOU THIS
PICTURE FIRST HE IDENTIFIES SOMEONE NAMED SHAH NAY. THEN HE CHANGES THE NAME TO CHELSEA AND
THEY ACKNOWLEDGES THAT POSSIBLY IT WAS VICTORIA HENDRIX AS WELL SO THE RECORD ISN'T EVEN
CLEAR THE ORIGIN OF THIS PICTURE. CHIEF JUSTICE STUART RABNER: COUNSEL, CAN
YOU IDENTIFY THE 3 CATEGORIES FOR US. I I THINK THE FIRST THE DEFENDANT ALLEGEDLY A PHOTO OF
THE DEFENDANT IS SHOWN, A NEW PHOTO. CATEGORY 2 AND LEAVE OFF THE DDETAILS FOR NOW. HABD
YESHGS THE SECOND GROUP ARE THE WITNESSES WHO COMPLETED A PHOTO ARRAY POSITIVELY IDENTIFIED
THE DEFENDANT AND THEN CAME NE DURING THEIR PRETRIAL PREP SESSIONS WERE SHOWN THE PHOTO
ARRAY AS WE'VE ALL BEEN REFERENCING AND THEN CAME IN AND MADE AN IN COURT IDENTIFICATION.
CHIEF JUSTICE STUART RABNER: SHOWN THE ARRAY OR SHOWN A PHOTO OF THE DEFENDANT, A
SINGLE PHOTO. MS. HANDY: A SINGLE TOW TOW. CHIEF JUSTICE STUART RABNER:
A SINGLE PHOTO. MS. HANDY: IS MY UNDERSTANDING, I'M VOIR, IF I MAY JUST
CLARIFY EVERY THE RECORD AS WELL FRM IN THE TESTIMONY FROM THESE WITNESSES, SOMETIMES IT
SAYS PHOTO, SOMETIMES IT SAYS PHOTO SO ADMITTEDLY IT IS NOT CLEAR SPECIFICALLY AS TO ALL
THESE WITNESSES WHETHER THEY WERE SHOWN A FULL ARRAY OR JUST THE 1 PICTURE THAT THEY
POSITIVELY IDENTIFIED. CHIEF JUSTICE STUART RABNER: AND THAT WAS MY FOLLOWUP
QUESTION. THE PHOTO THAT THEY WERE SHOWN IS IT CLEAR FROM THE RECORD WHETHER THAT WAS
PART OF THE ARRAY OR WHETHER IT WAS A DIFFERENT PHOTO OF THE DEFENDANT?^. MS.
HANDY: IT WAS A PICTURE -- MY CLARIFICATION ON WHAT THE RECORD IS UNCLEAR ABOUT IS WHETHER
THEY WERE SHOWN THE ENTIRE ARRAY OR JUST THE PICTURE THAT THEY POFL IDENTIFIED THAT WAS
THE DEFENDANT. CHIEF JUSTICE STUART RABNER: AND THAT IS CLEAR FROM THE RECORD
YOU'RE TELLING US. MS. HANDY: FROM MY OPINION, IT'S CLEAR FROM THE RECORD THAT
THEY WERE EITHER SHOWN THE PICTURE, THE WHOLE ENTIRE PHOTO ARRAY OR JUST THE PICTURE THEY
IDENTIFIED. NOT ANY OTHER PICTURES THAT I'VE REFERENCED S14, D 11, NONE OF THEM.
CHIEF JUSTICE STUART RABNER: AND THEN THE THIRD CATEGORY. MS. HANDY: AND THEN
THE THIRD CATEGORY IS JUST THE UNDISPUTED IDENTIFICATION IN THIS MATTER.
CHIEF JUSTICE STUART RABNER: EXPLAIN THAT. MS. HANDY: JUST THAT THERE'S ANOTHER
WITNESS HERE THAT THEIR IDENTIFICATION WAS NOT RAISED SO THE. THE OUTSIDE IDENTIFICATION
WHOSE IDENTIFICATION WAS NOT CHALLENGED. ASSOCIATE JUSTICE ANNE M. PATTERSON:
WITH NO ISSUE AS TO SHOWING ANY. ASSOCIATE JUSTICE NORIEGA: IS THAT HIENSZ.
ASSOCIATE JUSTICE RACHEL WAINER APTER: SORRY, SO YOU ARE PUTTING SCOTT 3 IN THE
FIRST CATEGORY WHICH IS WHEN THEY ARE SHOWN A NEW PICTURE BUT THEN IT MADE IT SEEM LIKE
THE ONLY PICTURE HE WAS SHOWN IS THE 1 HE HAD GIVEN TO OFFICER HEART INITIALLY.
MS. HANDY: CORRECT: AND THE WITNESS, THE JURY SOUGHT, WELL, I SHOULD SAY IT MAY HAVE
HAPPENED AT A 104 HEARING BUT THE EVIDENCE IN THE RECORD SHOWS THE OFFICERS HEART VIDEO,
OFFICER HEART TESTIFIES AT 104 THAT HE IS APPROACHED BY TIMOTHY SCOTT THE SON WITH A
PHOTO SAYING THIS IS THE MAN WHO COMMITTED THIS CRIME. I'M OF COURSE REPHRASING BUT
IDENTIFYING THE DEFENDANT. THAT IS THE PICTURE THAT HE IS SHOWN AND SO WHEN YOUR HONOR
POSED THE QUESTION AS TO WHEN IS THERE A SITUATION IN WHICH THE PROSECUTOR SHOULD BE
ALLOWED TO SHOW A PICTURE I THINK THAT'S A GREAT EXAMPLE OF IT. WHEN A WITNESS COMES FORWARD
AND IDENTIFIES AN INDEPENDENT PICTURE SAYING THIS IS THE MAN WHO DID THIS CRIME. IN PRETRIAL
PREP IT SHOULD BE PERMITTED FOR THE STATE TO PRESENT THAT PICTURE TO THE WITNESS AND SAY
THIS IS THE PICTURE THAT YOU SENT TO THE COPS, RYE, THIS IS THE 1 THAT YOU SAID WAS THE
PERSON. ASSOCIATE JUSTICE NORIEGA: BUT IT'S A PIECE OF REFERRED INFORMANT SPEND
OF WHAT IT DEMONSTRATES, RIGHT, AT THAT POINT YOU'RE HAVING THE WITNESS CORROBORATE. THIS
IS THE PIECE OF EVIDENCE THAT I HAD THAT I GAVE TO YOU AND THAT'S WHAT THE POLICE OFFICER
-- THAT'S WHAT YOU IN TRIAL PREP ARE RECONFIRMING, IT'S NOT REALLY ABOUT AN
IDENTIFICATION OR REFRESHING OR TRYING TO FIGURE OUT IF HE CAN STILL IDENTIFY WHOSE IN
THE PHOTO. IT WAS TRYING TO LEM SOLIDIFY CHAIN OF CUSTODY AT THAT POINT HAN CORRECT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: SO THAT IS KNOWN TO BE THE DEFENDANT'S PHOTO DURING
PRETRIAL PREP. THAT'S REALLY KIND OF DIFFERENT, ISN'T IT. ASSOCIATE JUSTICE RACHEL
WAINER APTER: OR AT LEAST IT'S NOT IN THE CAT DPRI OF SHOWING THE WITNESS A NEW PHOTO
THEY HAVEN'T PREVIOUSLY SEEN OF THE DEFENDANTS. MS. HANDY: CORRECT. SO IT'S
THE STATE'S POSITION THAT IT DID NOT OCCUR HERE, EXACTLY. THE COURT:^ COUNSEL
IS THERE ANY REASON TO SUGGESTIVENESS AND LIEU MAN MEMORY THAT ARE IDENTIFIED IN HENDERSON
DON'T EXTEND TO SHOWING A WITNESS DURING PRETRIAL PREP A PHOTO THEY HAVE NOT SEEN BEFORE
OF THE DEFENDANT, A SINGLE PHOTO THEY HAVE NOT SEEN BEFORE AS HAPPENED IN THIS CASE.
MS. HANDY: I THINK THERE'S SOME WEIGHT TO THE CONCERN THAT -- THERE'S SOME ARGUMENT
TO THE CONCERN THAT SHOWING A WITNESS A PICTURE -- CAN I CLARIFY YOUR HONOR, IS THIS A
WITNESS WHO HAS OR HAS NOT MADE AN OUT OF COURT IDENTIFICATION YET. CHIEF JUSTICE
STUART RABNER: LET'S ASSUME NO IDENTIFICATION MADE. BOTH WAYS R. MS. HANDY:
I CERTAINLY THINK THAT THERE IS A CONCERN THAT SHOWING A WITNESS DURING PRETRIAL PREPARATION
A PICTURE OF A DEFENDANT THAT THEY HAVE NEVER SEEN BEFORE AND HAD NOT MADE AN
IDENTIFICATION OF DEFENDANT IS CONCERNING AND CERTAINLY NOT A BEST PRACTICE THAT SHOULD BE
PRACTICED WITHIN THIS STATE. OF COURSE IT'S WITHIN SPECIFIC TO THIS CASE THE STATE'S POSITION
THAT DID NOT TAINT THAT WITNESS'S LATER IDENTIFICATION HERE. ASSOCIATE
JUSTICE RACHEL WAINER APTER: SORRY, I THOUGHT YOU WERE SAYING THE IT'S'S POSITION THAT
IT DIDN'T HAPPEN AND ANY TIME WE'RE SHOWING A WITNESS A SINGLE PHOTO THEY HAVE NOT SEEN
BEFORE AS OCCURRED IN THIS CASE IS PERMISSIBLE BUT I THOUGHT YOU HAD JUST PREVIOUSLY SAID
THAT THERE WAS NO WITNESS IN THIS CASE WHO WAS EVER SHOWN A SINGLE PHOTO THAT THEY HAD
NOT SEEN BEFORE HANDZ I WILL CLARIFY THEN THAT'S NOT TRUE. WILLIAM MATTHEWS WAS SHOWN
THE EVIL K JACKET PICTURE. SO I APOLOGIZE IF I MISSPOKE BUT THAT IS THE SITUATION. WILLIAM
MATTHEWS WAS SHOWN THE EVIL K JACKET PICTURE. IT'S THE STHAIT'S POSITION THAT ANY TAINT AS
TO OR ANY CONCERN OF TAINT AS TO THE THEN IDENTIFICATION, NUMBER 1, THE STATE GO ELICIT
THE IN COURT IDENTIFICATION SO CERTAINLY SPECIFIC TO THIS CONVICTION SHOULD NOT BE PRECH
PREJUDICED OR HARMED. ASSOCIATE JUSTICE RACHEL WAINER APTER: JUST TO
CLARIFY. HE WAS SHOWN THE EVIL K PICTURE WHICH HE HAD NEVER BEEN SHOWN BEFORE. MS.
HANDY: CORRECT. ASSOCIATE JUSTICE RACHEL WAINER APTER: AND FOR THAT YOU'RE
SAYING YOU HAVE A RESPONSE WHICH IS. MS. HANDY: SO FOR THAT I HAVE A RESPONSE,
NUMBER 1, THE EVIL K JACKET ACTUALLY ALIGNED WITH THE STAIMENTD THAT HE GAVE TO THE POLICE
AFTER THE INCIDENT WHICH WAS FACTUALLY INCORRECT. THE OTHER WITNESSES ALL REPRESENT THAT
HE WAS WEARING A BLACK IF YOUR JACKET SO AS QUESTIONED IN THE HOSPITAL IN HIS STATEMENT,
DEFENDANT BRINGS IT UP ON CROSS-EXAMINATION THAT, WHAT YOU INITIALLY TOLD THE POLICE,
YOU TOLD HIM THAT HE WAS WEARING A JACKET THAT WAS RED, WHITE AND BLUE. HE CONFIRMS AND
THEN GIVES SOME LATER STUFF WAS IT A SWEATSHIRT. THEY TALK ABOUT THAT. IN HIS STATEMENT
SO IT'S THE EVIL K PICTURE, THAT'S THE PICTURE HE IS SHOWN AT HIGS PRETRIAL PREP MEETING.
CHIEF JUSTICE STUART RABNER: DID YOU TELL THAT TO THE DEFENSE HAPD I'M SORRY.
CHIEF JUSTICE STUART RABNER: DID YOU TELL THE DEFENSE ABOUT THAT. MS.
HANDY: DID I -- WHAT SPECIFIC PART THE SHOWING OF THE PICTURE OR THAT WAS IN THE STATEMENT.
CHIEF JUSTICE STUART RABNER: THAT YOU SHOWED A PICTURE TO MR. MATTHEWS DURING
PREP?^. MS. HANDY: THE RECORD MAKES IT CLEAR HERE THAT THE STATE DID NOT ADVICE
DEFENDANT PRETRIAL THAT THAT PICTURE HAD BEEN SHOWN. THE COURT: WHEN WAS IT
FIRST DISCLOSED. MS. HANDY: AT TRIAL. CHIEF JUSTICE STUART RABNER:
IN THE MID RFT. MS. HANDY: IT WAS FIRST DISCLOSED DURING MY MY MEMORY OF THE
RECORD IS CORRECT, HIS SHOWING OF THE PICTURE CAME OUT WHEN HE GAVE THE DESCRIPTION ON
DIRECT THAT DEFENDANT WAS WEARING AN IF YOUR VEST. THEN DEFENSE COUNSEL WAS LIKE, WELL,
THIS IS THE FIRST TIME WE'RE HEARING ABOUT THIS, ABOUT THE IF YOUR VEST BECAUSE THE STATEMENT
INDICATED THE EVIL K AND THEN LATER IN OFF THE RECORD AND SIDEBAR THE STATE REPRESENTED
THAT YES, THE STATE STIPULATE THAT HAD THEY HAD SHOWN HIM THE EVIL K PICTURE.
CHIEF JUSTICE STUART RABNER: YOU'RE RELYING ON FACT THAT THE DEFENSE INVITED THE IN COURT
IDENTIFICATION. ISN'T THE DEFENSE ENTITLED TO KNOW ABOUT WHAT PHOTOS WERE SHOWN TO A
WEDNESDAY LONG BEFORE WE'RE IN THE MIDDLE OF THE TRIAL TESTIMONY ITSELF. MS. HANDY:
CERTAINLY THE STATE DOES NOT DISPUTE THAT DEFENDANT HERE SHOULD HAVE BEEN GIVEN NOTICE
THAT THAT PICTURE WAS SHOWN. HOWEVER, IN THIS CASE, IT'S IMPORTANT TO NOTE THAT THE RECORD
AS WELL, ALL OF THIS TESTIMONY ABOUT WHAT HAPPENED AT THE PRETRIAL PREP SESSION, WHAT
PICTURES WERE SHOWN, ALL OF THAT TESTIMONY HAD OCCURRED WITH MATTHEWS. MATTHEWS HAD EVEN
TESTIFIED HIMSELF PRIOR TO DEFENDANT ELICITING THE IN COURT IDENTIFICATION HE SPOKE TO THE
JURY AND SAID MY MEMORY OF THIS IS NOT GREAT. OF COURSE I'M PARAPHRASING BUT SPEAKS TO
I WAS ON MEDICATION, I'M OLDER GENTLEMAN, I HAD BEEN SHOT IN THE HEAD, MY MEMORY OF OF
THIS IS NOT GREAT. ALL OF THOSE THINGS OCCURRED MUCH THE DEFENDANT WAS WELL AWARE AND
ON NOTICE HERE AND I WOULD SAY ALSO INTRINSICLY ON NOTICE BECAUSE THE STATE DID NOT E
LICIT AN IDENTIFICATION OF THIS DEFENDANT BUT DEFENDANT WAS ON NOTICE BEFORE ELICITING
THIS IN COURT IDENTIFICATION OF THE PICTURE BEING SHOWN AND ALL OF THOSE THINGS, ALL OF
THOSE CONCERNS HAVE BEEN RAISED AND STILL THE IEKTS WAS ELICITED. ASSOCIATE
JUSTICE FABIANA PIERRE-LOUIS: HADN'T BEEN RAISED AT THE TIME OF TRIAL, THOUGH, YOU MEAN
ON NOTICE AT THE MOMENT THAT THIS TESTIMONY WAS PUT FORTH DURING THE TRIAL. MS.
HANDY: YES. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS: SO NOT ON NOTICE AS WE
USUALLY USE THE TERM ON NOTICE TO MEAN PRETRIAL WITH AN OPPORTUNITY TO CHALLENGE THE
TESTIMONY THAT MIGHT BE ELICITED. MS. HANDY: YES. ASSOCIATE JUSTICE
FABIANA PIERRE-LOUIS: SO WHEN YOU'RE SAYING ON NOTICE LET'S BE CAREFUL HERE BECAUSE IT'S
NOT NECESSARILY THE CASE THAT HE HAD HAD NOTICE IN THE SENSE THAT THE DEFENSE HAD THE
OPPORTUNITY TO DO MUCH WITH IT AS OPPOSED TO GET UP AND START ASKING QUESTIONS AS MS.
LORD INDICATED. MS. HANDY: CERTAINLY I JUST SAY ON NOTICE TO HIGHLIGHT THE
FACT THAT I THINK THAT THE STATE'S POSITION WOULD BE WORSE HERE IF AFTER ELICITING THE
IDENTIFICATION IT CAME OUT THAT HE HAD SEEN THESE PICTURES AND ALL THESE THINGS. I STILL
THINK IT WAS A STRATEGIC TRIAL DECISION FOR A DEFENDANT TO ASK THE QUESTION TO THE WITNESS
KNOWING WHAT THEY KNEW ABOUT THE CONCERNS OF TAINT GIVEN THAT THEY WERE SHOWN THE PICTURE.
CHIEF JUSTICE STUART RABNER: SO YOU CONCEDED IT'S NOT A BEST PRACTICE I THINK
IS ARE YOUR WORDS TO SHOW A SINGLE PHOTO TO THE WITNESS DURING TRIAL PREP. WHAT ABOUT
SHOWING A PHOTO REPEATEDLY DURING TRIAL PREP, A SINGLE PHOTO REPEATEDLY THAT THEY HAD
VIEWED BEFORE AND IDENTIFIED BEFORE?^. MS. HANDY: OKAY. SO THEY HAD IDENTIFIED
BEFORE SO MAYBE DID A PHOTO ARRAY AND POSITIVELY IDENTIFIED THE DEFENDANT?^. CHIEF
JUSTICE STUART RABNER: YEAH HAPD I THINK OF COURSE AS FAR AS ANY CONCERNS GO, WELL, FIRST
OF ALL, I THINK IT'S IMPORTANT TO IDENTIFY FIRST THAT THAT IS NOT AN IDENTIFICATION PROCEDURE
AS THIS COURT HAS NOTED BUT IT'S A REFRESHING OF RECOLLECTION OF SORT. MS. HANDY:
I'M SORRY, THAT THE IDEA IS OUT THERE, THIS COURT HAS NOT RULED THAT, BUT IT'S THE STATE
'S POSITION THAT IT IS NOT A NEW IDENTIFICATION PROCEDURE. CHIEF JUSTICE STUART
RABNER: IS IT ALL RIGHT?^ IS IT A GOOD PRACTICE. MS. HANDY: I THINK AS THE
PARTY WHO HAS THE BURDEN OF PRODUCTION AND THE THE BURDEN OF PROOF, THE STATE SHOULD BE
ABLE TO ASK A WITNESS A QUESTION -- THE STATE SHOULD NOT BE PUT IN A POSITION THAT THEY
HAVE TO ASK 1 OF THEIR WITNESSES ON THE STAND AND ANSWER -- A QUESTION THAT THEY ARE GOING
TO GET THE ANSWER TO FOR THE FIRST TIME JUST LIKE THE JURY. I THINK IT IS APPROPRIATE
AND IT IS PERMISSIBLE IN THIS INSTANCE FOR WHEN SPECIFICALLY A DEFENDANT HAS MADE, CONDUCTED
A PHOTO ARRAY, NO CONCERNS UNDER HENDERSON, I THINK IT'S PERMISSIBLE IN PRETRIAL
PREPARATION TO SHOW THAT PICTURE. REGARDINGING THE FROOEG FREQUENCY, CERTAINLY DEFENDANTS
ARGUMENT IS STRONGER OF CONCERNS OF IT POSSIBLY TAINTING A LATER IN COURT IDENTIFICATION
THE MORE TIMES IT HAPPENS. I THINK IT'S ALSO IMPORTANT TO JUST BE AWARE OF THE PRAK AT
THIS KALTSZ OF HOW OFTEN TIMES TRIALS ARE RESCHEDULED, HOW OFTEN TIMES WITNESSES ARE
PREPPED AND I THINK ANY CONCERNS ABOUT POSSIBLE TAINT COULD BE ELICITED BY CROSS-EXAMINATION
BY THE DEFENDANT. CHIEF JUSTICE STUART RABNER: SO PETERSON MET WITH THE PROSECUTORS
IF I UNDERSTAND THE RECORD CORRECTLY 5 TIMES OR SO HABD YES. CHIEF JUSTICE STUART
RABNER: AND EACH TIME HE WAS SHOWN A PHOTO OF THE DEFENDANT OR THE PHOTO ARRAY, EACH TIME
AFTER HAVING SEEN IT. GIVEN WHAT WE KNOW ABOUT MULTIPLE VIEWINGS, IS THAT A WISE PRACTICE
IF YOU'RE A DEFENDANT. MS. HANDY: YOUR HONOR, ACTUALLY THAT'S NOT HOW IT IT
OCCURRED BELOW. PETERSON DID HAVE 5 TRIAL PRETRIAL MEET,. HE TESTIFIED HE WAS OJ SHOWN
THE PICTURES FROM THE PHOTO ARRAY AT THE FIRST TRIAL PRE PREP MEETING AGAIN WE DON'T KNOW
WHEN THAT HAPPENED AND THE CITATIONS FOR THAT ARE S6126 AND CIRCUMSTANCES T 158. I DON'T HAVE
THE SPECIFIC LINES BUT THOSE ARE THE PAGES. BUT PETERSON'S TESTIMONY IS YES I MET WITH
PROSECUTORS 5 TIMES BUT I ONLY RECALL BEING SHOWN THIS PHOTO ARRAY OR THE PICTURES FROM
THE PHOTO ARRAY ONCE AND THAT WAS AT MY FIRST MEETING. AGAIN, ASSUMING THAT THAT HAPPENED
THE FURTHEREST OF COURSE FROM THE TIME OF OF TRIAL. ASSOCIATE JUSTICE RACHEL
WAINER APTER: SORRY AND SO YOU'RE SAYING, I STILL WASN'T 100 PERCENT CLEAR. HE WAS SHOWN
ALL THE PHOTO ARRAY PICK IS OR HE WAS SHOWN ONLY THE PICK HE PICKED OUT OF PHOTO ARRAY.
MS. HANDY: I DON'T WANT TO SPEAK TO THAT BECAUSE I DON'T KNOW THAT THE RECORD
IS CRYSTAL CLEAR ON THAT BECAUSE SOMETIMES THE WITNESS USES THE FRAGS PHOTOS. I DON'T KNOW
AND I DON'T WANT TO MISS REPRESENT WHAT OCCURRED. ASSOCIATE JUSTICE RACHEL WAINER
APTER: IF THE STATE IS THE PARTY. SO YOU RAISED IN YOUR BRIEF THAT YOU KNOW THERE'S A LACKS
OF CLARITY IN THE RECORD AS TO WHICH PHOTOS THE PROSECUTION SHOWED TO WHICH WITNESSES DURING
TRIAL PREP BUT SINCE YOU ARE THE PROSECUTION WOULDN'T THAT STATE HAVE THAT INFORMATION
AS TO WHICH WITNESSES WERE SHOWN WHICH PHOTOS. MS. HANDY: THEORETICALLY YES
THE STATE SHOULD HAVE THE INFORMATION, THE STAND TO SHOULD KNOW BUT ILESS DON'T KNOW THAT
IT'S FAIR FOR THE PROSECUTOR TO KEEP A DETAILED RECORDS SPECIALLY IN INSTANCES OF THIS
WHEN TRIAL WAS PUSHED MULTIPLE TIMES AND MULTIPLE DATES WERE GIVEN THAT SPECIFICALLY WHAT IS
HAPPENED EVERY SINGLE TIME. ASSOCIATE JUSTICE LEE A. SOLOMON: BUT DO YOU AT
LEAST CONCEDE TO THAT WHEN THEY ARE SHOWN THE PICTURE OF THE DEFENDANT, LET'S SAY HANDY
DER SON COMPLIANT PHOTO ARRAY, PICKS OUT THE PICTURE OF THE DEFENDANT. IF THE THE WITNESS
OR IF THE WITNESS IS SHOWN A PICTURE OF THE DEFENDANT PRETRIAL, THEY SHOULD AT LEAST NOTE
WHEN THEY DO THAT HANDZ YEAH, I THINK THIS COURT AND WATSON SAYS THAT HAS TO DO.
ASSOCIATE JUSTICE LEE A. SOLOMON: BUT THAT DID NOT HAPPEN HERE. MS. HANDY:
CORRECT SHS IT WAS PRE WATSON NOTED OR IT WAS THE STATE'S POSITION THAT. BUT I THINK
IT'S A GREAT POINT THAT YOUR HONOR MAKES AS WELL THAT IT IS ADDRESSED GOING FORWARD HERE
THAT IT WOULD BE REQUIRED UNDER WATSON. ASSOCIATE JUSTICE NORIEGA: JUST ANOTHER
LAYER TO THAT, WHEN IT COMES TO PETERSON, ISN'T IT CORRECT THAT IN 1 OF THE PHOTOS SHOWN
TO HIM AND 1 OF THOSE INTERVIEW SESSIONS IS A FACEBOOK PHOTO, WHETHER IT WAS AN AN ENTIRE
PHOTO ARRAY OR AT LEAST 1 SELECTED, OTD ON AT LEAST 1 OCCASION HE WAS SHOWN THE FACEBOOK
PHOTOGRAPH WHERE THE DEFENDANT IS ALLEGEDLY WEARING IS GLASSES IN THE PHOTO. SO DO YOU
HAVE A POSITION ON WHETHER OR NOT THAT HE CHANGES THE THE THE DYNAMIC OF THAT PREP SESSION
SINCE IT'S NOW A NEW PHOTO, THE DEFENDANT IN A DIFFERENT CONTEXT BUT IT ALMOST SEEMS
LIKE THEY ARE GIVING SOME DIFFERENT IDEA OF OF HOW TO VIEW THE DEFENDANT. MS. HANDY:
SURE, I THINK ACTUALLY THE RECORD REFLECTS THAT THAT'S NOT TRUE. PETERSON WASN'T SHOWN
S14 OR D 11. PETERSON WAS SHOWN HE SAID HE MET WITH THE PROSECUTOR ON MORE THAN 1 OCCASION.
HE WAS SHOWN PHOTOGRAPHS BUT NOT THE THE ARRAY HE WAS SHOWN PHOTOGRAPHS OFF INSIDE THE
BAR. THERE'S NOTHING IN THE RECORD, SO, LIKE, GENERAL PIRSZ OF THE CRIME SCENE, I WILL
SAY. CHIEF JUSTICE STUART RABNER: WAS THERE A STIPGS THAT THE THE PROSECUTION
OFFERED WITH RESPECT TO PHOTOS SHOWN TO HIM BECAUSE HE SAID DIDN'T HE SEE PHOTOS WHEN
HE TESTIFIED OR AM I MISTAKEN. MS. HANDY: THAT IS TO MATTHEWS. THE PROSECUTOR
STIPULATES BECAUSE MATTHEWS GETS ON THE STAND AND SAYS I DON'T RECALL SEEING THAT PICTURE,
I'VE NEVER SEEN THAT PICTURE AND THE PROSECUTOR STIPTSZ I DID SHOW HIM D 11. CHIEF
JUSTICE STUART RABNER: ONLY MATTHEWS NOT PETERSON. ASSOCIATE JUSTICE
FABIANA PIERRE-LOUIS: IS THAT THE ONLY STIPGS BY THE PROSECUTOR WITH REGARD PHOTOS THAT
WERE SHOWN?^ WASN'T THERE ANOTHER HANDZ THERE MAY HAVE BEEN THE PHOTO SHOWN S14 TO TIMOTHY
SCOTT, THE SON. CHIEF JUSTICE STUART RABNER: COUNSEL, WHEN YOU SAID.
ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS: TO MAKE A POINT, IT SEEMS THAT THERE WAS MORE THAN
1 INSTANCE WHERE THE WITNESS DID NOT REMEMBER WHAT THEY WERE SHOWN AND THE PROSECUTOR
HAD TO STEP IN AND MAKE A STIPGS TO THE COURT THAT THEY ACTUALLY WERE SHOWN THE PICTURE
SO I MEAN, AGAIN, THIS RECORD IS NOT 100 PERCENT CLEAR SO THAT, YOU KNOW, I THINK GOES
TO THE DEFENSE POINT THAT THERE ARE MULTIPLE LAYERS OF TAINT INVOLVED WITH REGARD TO MANY
SOFLT PICTURES THAT WERE SHOWN OR NOT SHOWN AT DIFFERENT POINTS DURING THE PRETRIAL
PREPARATION. MS. HANDY: I THINK THERE'S AN ARGUMENT CERTAINLY AS TO THE WITNESS'S
RECOLLECTION BUT I THIS HI IT COULD ALSO CUT THE OTHER WAY OF IF THEY DON'T EVEN RECALL
SEEING A PICTURE, HOW CAN THAT PICTURE -- I THINK THERE'S AT LEAST HIGHER CONCERN OR LESS
CONCERN THIS THAT PICTURE WAS SO IMPRESS SIF UPON THEM THAT IT THEN LATER AFFECTED THEIR
IN COURT IDENTIFICATION OR LATER IDENTIFICATION THAT WAS MADE. ASSOCIATE JUSTICE
NORIEGA: BUT I'M HAVING TROUBLE WITH THAT BECAUSE YOU'RE SUGGESTING THAT IT DIDN'T NEED
TO BE RECORDED, DIDN'T NEED TO BE MEMORIALIZED IF ANYWAY BUT SHOULDN'T THE DEFENSE HAVE
THE RIGHT TO CROSS-EXAMINE ON THAT PIECE OF EVIDENCE THAT WAS SLOAN TO THE WITNESS
SPECIALLY WHERE HERE WE'VE GOT THIS FACEBOOK PHOTO OUT THERE WITH AN EVIL K PICTURE. IT IS
NOT CONSISTENT WITH THE DESCRIPTION OF THE SHOOTER. SO WE'VE GOT A WITNESS THAT IS
IDENTIFYING SOMEBODY BASED ON THAT PIECE -- THAT ARTICLE OF CLOTHING FROM A PHOTOGRAPH
AND THE DEFENSE IS NOT TOLD WHEN THAT PHOTO HAS BEEN SHOWN TO WITNESSES AND NOW WITNESSES
ARE TALKING ABOUT THAT ARTICLE OF CLOTHING AS THE THING THEY REMEMBER ABOUT THE DEFENDANT
WHO, IF IT HE'S THE SHOOTER WAS NOT WEARING IT THAT NIGHT. DOESN'T THAT CREATE PROBLEMS
IN TERMS OF WHAT NEEDS TO BE TURNED OVER HAN I WOULD CLARIFY THAT IT'S THE STATE'S POSITION
THAT THIS COURT APARTMENTLY HELD THAT GOING FORWARD UNDER WATSON THAT THAT INFORMATION
WOULD HAVE TO BE TURNED OVER AND THAT IS SUFFICIENT GOING FORWARD. SPECIFIC
TO THIS CASE, IT'S THE STATE'S ARGUMENT THAT ALL THE OTHER FACTORS HERE, ALTHOUGH THIS
IS ALL THIS FOE DID YOU SAY ON IDENTIFICATION AND STUFF, THEY KNEW HIM AND I KNOW DEFENDANT
DOESN'T BELIEVE THAT THAT ARGUMENT CARRIES WEIGHT BUT THEY KNEW HIM. THEY KNEW HIM ENOUGH
TO STAY YEAH, WHEN HE COMES HERE HE WHERE'S THIS JACKET OR HE DOESN'T WEAR THIS JACKET.
YEAH WHEN HE COMES HERE HE HAS DID HE SIGNER GLASSES AND HE DOESN'T. AND THEY HAVE THESE
FRAMES AND THEY HAVE THOSE FRAMES. DID THEY KNOW HIS NAME BUT THEY WERE FAMILIAR WITH
HIM. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS: BUT VICTOR HENDRIX WAS
FAMILIAR WITH HIM BUT DIDN'T SHE INITIALLY PROVIDE CHARACTERISTICS THAT WERE NOT CONSISTENT
WITH DEFENDANT BUT WERE WITH THE OTHER INDIVIDUAL THAT WAS IN THE FACEBOOK PICTURE.
MS. HANDY: ON REDIRECT EXAMINATION VICTORIA CLARIFIES HA HER ANSWERS TO THOSE QUESTIONS
WAS TO THE OFFICER ASKING HER ABOUT THE OTHER MAN IN THE PICTURE WHOSE REFERRED TO AS
MONEY MIKE. SO IF I COULD JUST REFLECT THAT, GIVE YOU A REFERENCE TO THAT OVER THE RECORD.
THAT WOULD BE ON 6 T, 242. SHE SAYS IT WASN'T -- THE DESCRIPTION, THAT DESCRIPTION THAT IS
COMMUNICATE INTERESTED CAPTURED IN THAT VIDEO ON 62242. MUCH IS HE SHED, THIS IS ME
PARAPHRASING. IT WASN'T OF THE SHOOTER IT WAS OF THE QUOTE GENTLEMEN THAT WAS WITH HIM
SO I THIS THERE'S SOME LACK OF CLARITY WHAT ACTUALLY DID VICTORIA HEND DIX SAY ABOUT
THESE WITNESSES AND LIKE I SAID, THAT WAS QUESTIONED ON CROSS -- ON REDIRECT THE STATE
FOLLOWED UP TO CLARIFY WHAT ACTUALLY SHE WAS REFERENCING. ASSOCIATE JUSTICE
RACHEL WAINER APTER: WHAT'S YOUR RESPONSE TO AMICI'S ARGUMENT THAT REALLY THE IDEA OF
SOMEONE WITH WHOM ANOTHER PERSON IS FAMILIAR ONLY APPLIES IF IT'S THEIR WIFE OR THEIR
FATHER OR MOTHER OR SISTER OR BROTHER. MS. HANDY: I THINK THAT'S NOT REALISTIC
AND THAT'S NOT FAIR AND I THINK -- IT'S A FACTUAL DETERMINATION TO THEN BE MADE BY THIS
COURT AS FAR AS WHAT THAT FAMILIARITY IS AND THAT IS FOR FOR THE DEFENDANT TO ARGUE AS
TRIAL BELOW AS EITHER PART OF CROSS-EXAMINATION OR SUMMATION TO DELVE OUT HOW FAMILIAR
WITH YOU ARE, AND THEN PRESENT THAT EVIDENCE TO THE JURY. CHIEF JUSTICE STUART
RABNER: STEPPING BACK FROM THE FACTS ABOUT A PARTICULAR WITNESS IN THIS CASE, IS IT
APPROPRIATE TO SHOW A WITNESS DURING TRIAL PREP A PHOTO OF THE DEFENDANT EVEN IF IT'S A
N A PHOTO OUT OF A PREVIOUSLY CONNECTED PHOTO ARRAY, MULTIPLE TIMES DURING MULTIPLE TRIAL
PREP SESSIONS HANDZ I THINK THAT PRACTICE SHOULD CERTAINLY NOT BE EMPHASIZED OR SUPPORTED.
HOWEVER, I THINK THAT ALSO THOUGH COURTS NEED TO MAKE SOME TYPE OF EXCEPTION OR UNDERSTANDING
FOR THE THE REALWAYS OF PRETRIAL PREP AND THE MOVEMENT OF PRETRIAL DATES. I CAN CERTAINLY
SEE A SITUATION WHERE THE STATE GEESE INTO A PRETRIAL WITNESS PREPARATION THIS IS GOING
TO BE THE 1, WE'RE GOING ON MONDAY, OR TUESDAY, AND NEXT THING YOU KNOW YOU GET TO COURT
ON TUESDAY AND "COMES UP AND THE MATTER IS POST POEND ANOTHER 6 MONTHS FOR WHATEVER REASON
AND NOW ARE IN A SITUATION AGAIN WHERE I DON'T THINK THAT THEY SHOULD SOMEBODY PENALIZED
FOR DUE TO THE PASSAGE OF TIME SHOWING IT AGAIN. CERTAINLY I DON'T THINK IT'S A GREAT
PRACTICE TO REPEATEDLY DO IT BUT I DO THINK THAT THIS COURT NEEDS TO ADDRESS OR AT LEAST
TAKE ACCOUNT OF THE FACT THAT THE PRAK AT THIS KALTSDZ OF TRIAL ALL THE TIME DON'T ALLOW
IT FOR IT TO JUST BE ONLY ONCE. CHIEF JUSTICE STUART RABNER: SO IF A PHOTO
IS SHOWN MULTIPLE TIMES, BASED ON WHAT WE KNOW FROM THE SOCIAL SCIENCE EVIDENCE, DOESN'T
THAT HAVE AN EFFECT ON THE IN COURT IDENTIFICATION THAT THE PROSECUTION MIGHT
CITY. MS. HANDY: CAN I ASK IF IT'S A PHOTO -- ARE WE TALK ABOUT PHOTO ARRAY
OR TALKING ABOUT LIKE BRAND NEW PHOTO. YOU'RE TALKING GENERALLY?^. CHIEF JUSTICE
STUART RABNER: YES. MS. HANDY: OKAY. CAN YOU REPEAT THE QUESTION?^. SORRY.
CHIEF JUSTICE STUART RABNER: YOU MEET WITH THIS WITNESS MULTIPLE TIMES. TRIAL
DATE GETS POST POEND. YOU SHOW THEM A PHOTO OF THE DEFENDANT AGAIN SIMILAR TO THE 1 THAT HAD
BEEN IN THE ARRAY. AND AGAIN. AND AGAIN. DO YOU CONCEDE THAT THAT POTENTIALLY HAS AN
EFFECT ON AN IN COURT IDENTIFICATION. MS. HANDY: I CAN SEE THAT IT'S A FACT
SPECIFIC QUESTION AND THERE ARE CERTAINLY INSTANCES WHERE IT COULD HAVE AN EFFECT, AN
INSTANCE IN A CASE LIKE WATSON WHERE I.D. IS MORE OF AN ISSUE. CERTAINLY I THINK THE AFFECT
IS MORE WORRY SOME THAN THIS 1. CHIEF JUSTICE STUART RABNER: YOU DISAGREE
WITH THE CONCLUSIONS ON HELPED DER SON THAT ARE BASED ON MULTIPLE VIEWINGS AND THE SOCIAL
SCIENCE THAT UNDERLIE THEM. MS. HANDY: I DO NOT. HOWEVER I DO QUESTION THOSE
SOCIAL STUDIES THAT UNDER LICENSE PLATE THEM. I THINK IT WAS IT WAS DISCUSSED WITH AAMICI
THAT THEY AREN'T THAT MANY SPECIFIC TO THE FAMILIARITY OF IT ADDRESSING THAT POINT AND
I THINK A THE LOVE STUDIES. ASSOCIATE JUSTICE ANNE M. PATTERSON: ALL RIGHT.
I DIDN'T FOLLOW THAT. MS. HANDY: SURE. THAT THE STUDIES OUT THERE GENERALLY
ADDRESS THE IDEA OF BEING SHOWN A PICTURE AND HOW IT AFFECTS IT LATER ON AND DOESN'T ACCOUNT
FOR WHEN A WITNESS IS FAMILIAR. CHIEF JUSTICE STUART RABNER: COULD SHOWING
A PHOTO MULTIPLE TIMES HAVE AN AFFECT ON THE CONFIDENCE LEVEL THAT WITNESS DEMONSTRATES
IN AN IN COURT I.D. HAPD CERTAINLY. I THINK PRACTICALLY SPEAKING CERTAINLY IT CAN.
HOWEVER, ANY CONCERNS OF THAT CONFIDENCE AND ANY CONCERNS OF THAT AFFECT CAN APPROPRIATE
YATDLY BE ADDRESSED BY DEFENDANT IN SUMMATION AND CROSS-EXAMINATION. ASSOCIATE
JUSTICE RACHEL WAINER APTER: HOW COMMON IS THIS PRETRIAL PRACTICE. MS. HANDY: I THINK THAT MAY BE A QUESTION BETTER FOR THE AG FROM A STATEWIDE PERSPECTIVE. I DO THINK
SO NOT A TIMOTHY SCOTT III SITUATION WHICH THEY MADE, THEY IDENTIFIED THE PHOTO THEMSELVES
INDEPENDENT PEFRNTLYMENT I DO THINK IT IS VERY UNCOMMON TO BE SHOWN AN OUTSIDE PHOTO,
A NEW PHOTO FOR THE FIRST TIME. I WOULD ARGUE THAT IT IS NOT UNCOMMON FOR A PROSECUTOR,
SPECIALLY AN EXPERIENCED PROSECUTOR WHO KNOWS HOW TRIAL GOES AND THE WHIMS AND THINGS
CAN OCCUR, TO WITNESS PREPARATION, WITH A WITNESS WHO HAS POSITIVELY IDENTIFIED SOMEONE
TO QUESTION THEM DURING PRETRIAL PREPARATION BEFOREHAND OF IS THIS THE PICTURE YOU PICKED,
DO YOU RECALL THAT?^ THE QUESTIONS THAT YOUR HONORS WERE GIVING EXAMPLES OF EARLIER. I
THINK THAT THAT'S MORE COMMON AND I THINK THAT'S UNDERSTANDABLE. AS I SAID, AS THE PARTY
WITH THE BURDEN OF PROOF AND PRODUCTION, YOU KNOW, THE STATE DOESN'T NEED TO BE BEHIND
THE 8 BALL IN ASKING A QUESTION OF ITS OWN WITNESS FOR AN ANSWER THAT IT DOESN'T KNOW
AND HEARING THAT ANSWER FOR THE FIRST TIME WITH THE JURY AND I THINK ALSO KNOWING THAT
INFORMATION AHEAD OF TIME MAYLESS AFFECT HOW THE PROSECUTOR ASKS OR THE ASSISTANT PROSECUTOR
EXCESS QUESTIONS OF TRIAL OF THAT WITNESS WHETHER THEY ARE FAMILIAR WITH IT OR NOT.
CHIEF JUSTICE STUART RABNER: ANY OTHER QUESTION?^ ANYONE?^ THANK YOU, COUNSEL. MR.
KLEIN: MR. CHIEF JUSTICE AND MAY IT PLEASE THE COURT, SO TO HELP DEFINE THE SCOPE OF THE
DISPUTE, I WANT TO START WITH WHAT THE ATTORNEY GENERAL AND THE DEFENDANT AGREE ON OR
AT LEAST BOTH ACKNOWLEDGE. SO, 1, PROSECUTORS WHEN PREPPING FOR TRIAL SHOULD NEVER SHOW
A WITNESS A PHOTOGRAPH OF THE DEFENDANT OR A PHOTO ARRAY INCLUDING THE DEFENDANT'S PHOTO
FOR THE FIRST TIME WHEN THAT WITNESS CAN REASONABLY BE EXPECTED TODAY LATER IDENTIFY
THE DEFENDANT IN COURT. THAT'S AN INAPPROPRIATE I.D., IN COURT I.D. PROCEDURE AND WE AGREE
ON THAT ACCORDING TO WATSON. ASSOCIATE JUSTICE ANNE M. PATTERSON: CAN YOU
PAUSE ON THAT FOR JUST 1 SECOND R THANKS TRCHLT. MR. KLEIN: AND 2, THE DEFENDANT
AND THE AG BOTH SEEM TO ACKNOWLEDGE THAT UNDER SOME CIRCUMSTANCES IT MAKES SENSE THAT
PROSECUTORS BE ABLE TO DURING TRIAL PREP TO SHOW A WITNESS A PROPERLY RECORDED AND ADMINISTERED
DOUBLE BLINDS PHOTO ARRAY IF THAT WITNESS PREVIOUSLY PICKED THAT HE SUSPECT OUT OF THE
ARRAY AND THAT OF COURSE IS NOT AN I.D. PROCEDURE. SO WE NOT ONLY HAVE COMMON GROUND
ON THAT SDOER, BUT WHAT'S BEING SOUGHT, THE SITUATION SPECIFIC VIEWING OF THE CLEAN HEND
ERSON COP COMPLIANT ARRAY, FITS WITH WHAT WATSON DECIDED SAID THAT WITNESSES DURING TRIAL
PREP ARE SHOWN PHOTOS THEY PREVIOUSLY VIEWED, AT PRIOR OUT OF COURT I.D.S, THAT TRIAL
PREP DISCUSSION MUST BE DISCLOSED, THE IMPLICATION BEING THAT SHOWING THAT ARRAY
DURING TRIAL PREP MUST BE PERMITTED IN SOME SITUATIONS. CHIEF JUSTICE STUART
RABNER: SO I'M GOING TO READ FROM YOUR BRIEF AND THEN ASK YOU TO FLESH IT OUT FOR US.
PROSECUTOR SHOULD GENERALLY AVOID SHOWING WITNESSES PREVIOUSLY SELECTED PHOTOS
OF THE DEFENDANT DURING TRIAL PREP UNLESS THERE IS GOOD REASON TO DO SO. SO
IT SOUNDS A LITTLE DIFFERENT THAN WHAT YOU JUST SAID BUT LET'S GO WITH IT. GENERALLY
SHOULDN'T SHOW A PREVIOUSLY SELECTED PHOTO DURING TRIAL PREP. MR. KLEIN: SO
WE STANDS BY THAT LANGUAGE AND MAYBE I CAN EXPAND. THE COURT: PLEASE.
MR. KLEIN: ON SOME FACTORS THAT MAY HELP AND THE TOTALITY OF THE CIRCUMSTANCES AND
AN EXAMPLE OF 2 IN WHICH THAT MAY BE APPLIED. SO WHAT CONSTITUTES A GOOD REASON, WHAT ARE
SOME FACTORS THAT WE COULD USE. SO I THINK AS THE CHIEF JUSTICE ALLUDED TO, THE TIME
INTERVAL BETWEEN THE OUT OF COURT I.D. AND THE TRIAL PREPARATION SESSION. IF A LONG TIME
HAS PASSED, MORE WEIGHT SHOULD BE GIVEN TO THAT THAN IF A VERY SHORT TIME HAS PASSED.
THE FAMILIARITY OF THE WITNESS WITH THE SUSPECT. IF THE WITNESS IS MORE FAMILIAR
WITH THE SUSPECT, NOT NECESSARILY A COUSIN, BUT SOMEBODY THAT THEY KNOW REASONABLY WELL,
THAT'S A NONEXCLUSIVE FACTOR. THESE ARE NONEXCLUSIVE FACTORS THAT WOULD SUPPORT A
GOOD REASON. ASSOCIATE JUSTICE ANNE M. PATTERSON: CAN YOU PAUSE ON THAT. WOULD
THAT INCLUDE SITUATIONS SUCH AS WHAT APPEARS TO BE THE CASE THIS APPEAL IN WHICH SEVERAL
OF THE WITNESSES DID NOT KNOW THE DEFENDANT BY NAME BUT KNEW HIM BECAUSE HE HAD BEEN THERE
BEFORE. MR. KLEIN: I THINK IT WOULD JUSTICE PATERSON. IF IF TLDZ BEEN TRAUMA
ENDURED BY THE VICTIM, THAT MAY CAUSE THE VICTIM TO BE UNABLE TO REMEMBER WHAT'S HAPPENED
OR MAYBE IT JUST, IT'S DIFFICULT FOR THEM TO CONFRONT. THAT MAY BE A FACTOR THAT A
NONXAUSZIVE FACTOR TO BE CONSIDERED. ASSOCIATE JUSTICE RACHEL WAINER APTER:
SORRY, YOU'RE TALKING ABOUT FACTOR 3 NOW. ON FACTOR 2 YOU RESPONDED FAMILIARITY IS NOT
SAME AS MOTHER, BROTHER, SISTER, WIFE. IT CAN BE SOMEONE WHO YOU'VE SEEN A FEW TIMES.
MR. KLEIN: I THINK IT'S A SPECTRUM, YOUR HONOR. I THINK THAT'S FAIR TO SAY.
I THINK, YOU KNOW, MOTHER, BROTHER, SISTER WIFE, MUCH CLEARER CASES. A COWORKER THAT OOU
SEEN OVER A FEW MONTHS. STILL AS FAMILIAR BUT NOT THOSE FOLKS. CHIEF JUSTICE STUART
RABNER: WOULD A SEASONED PROSECUTOR EVER NEED TO SHOW A PHOTOGRAPH OF A MOTHER TO A WITNESS.
MR. KLEIN: PROBABLY NOT. ASSOCIATE JUSTICE ANNE M. PATTERSON: I'M
RESPONSIBLE FOR THE BAD EXAM OF OF A COUSIN SO JUST IGNORE THAT 1. MR. KLEIN:
I SUPPOSE. CHIEF JUSTICE STUART RABNER: NO, BUT IT'S AN IMPORTANT POINT
BECAUSE YOU DON'T WANT THE EXCEPTION TO SWALLOW THE RULE AND JUST SEEING A PERSON WELL
OUTSIDE OF THIS QUITE FAMILIAR SITUATION OF A RELATIVE OR A CLOSE FRIEND LEADS YOU TO
WHAT UNIVERSE SNE. MR. KLEIN: I THINK I UNDERSTAND THE IMPLICATION OF THE
QUESTION. I THINK MAYBE THE BETTER EXAMPLE IS THE COWORKER OR SOMEBODY THAT YOU'VE SEEN
5, 6 TIMES IN A BAR. THAT I THINK THAT'S A FACTOR THAT LENDS ITSELF WELL TOWARD THE GOOD
REASON STANDARD THAT WE'RE DISCUSSING. I THINK THERE'S AN INTERESTING CASE THAT IS CITED
IN PEOPLE V MARSHALL WHICH WAS DISCUSSED EARLIER WHICH IS HOPKINS, A NEW^YORK CASE. AND
THE COURT FOUND THAT REVIEWING ARREST PHOTOS OF DEFENDANT AND CODEFENDANTS BEFORE TRIAL
TO GO OVER THEIR ROLLS IN A ROBBERY NOT, WAS NOT AN I.D. PROCEDURE BUT MORE IMPORTANTLY
THAT WAS SORT OF A GOOD REASON, SO TO SPEAK FOR REVIEW. OF COURSE WE FEEL THAT THE
DETECTIVE SHOULD BE THERE AT ALL TIMES WITH THE PROSECUTOR GOING OVER IF THIS, IF THE
HELPED DER SON COMPLIANT ARRAY IS GONE OVER IN TRIAL PREP. THE PROSECUTOR'S QUESTIONS
ABOUT THE ARRAY SHOULD BE NEUTRALLY PHRASED INTERESTED NONSUGGESTIVE AND WE FEEL THAT
IF POSSIBLE, AND THIS WOULD BE THE PREFERENCE, THE WITNESS SHOULD BE SHOWN THE WHOLE ARRAY.
AND JUST FOR A FEW EXAMPLES, CHIEF JUSTICE RABNER BROUGHT UP EXAMPLE OF THE
WITNESS RNS THERE'S A 2-YEAR DELAY BETWEEN THE IDENTIFICATION PROCEDURE OUT OF COURT AND
THE TRIAL PREP SESSION. THAT, THAT CERTAINLY CAN, WITH OTHER FACTORS I'M SURE, BE A GOOD
REASON BUT I THINK WHAT'S IMPORTANT AND WHAT CAN HELP PROTECT THE DEFENDANT IS ONCE THE
WITNESS GETS IN TO COURT, THE PROSECUTOR SHOULD LAY A FOUNDATION TO MAKE SURE AS JUSTICE
WEINER APARTMENT TER POINTED OUT IN MARSHALL THAT THERE'S AN INDEPENDENT SOURCE THAT
DOESN'T STEM FROM THE VIEWING EVIDENT ARRAY DURING TRIAL PREPARE THAT SHOWS THEY HAVE AN
INDEPENDENT RECOLLECTION FROM THE EVENT OF WHAT THE PERSON LOOKED LIKE. AND I THINK THAT
COULD GEM. ASSOCIATE JUSTICE RACHEL WAINER APTER: WOULDN'T BE THAT BE A CASE
AN EVERY TIME THE PERSON HAS PREVIOUSLY IDENTIFIED THE PERSON. SO YOU STARTED OUT BY
SHOWING YOU SHOULD NEVER SHOWN A PHOTO TO SOMEONE WHO HASN'T MADE AN IDENTIFICATION. SO
WE ARE ALREADY IN THE UNIVERSE WHERE THEY HAVE ALREADY MADE AN MADE AN IDENTIFICATION.
IF THE FACT THAT THEY HAVE ALREADY MADE AN IDENTIFICATION IS ALWAYS GOING TO BE AN
INDEPENDENT SOURCE, THEN WHAT ARE WE TALKING ABOUT?^. MR. KLEIN: I THINK I
UNDERSTAND THE QUESTION BUT I THINK THAT THE CONCERN IS THAT IF THAT PHOTO IS BEING SHOWN
DURING TRIAL PREP AND THE ALLEGATION IS THAT THE PERPS NOT GOING TO BE ABLE TO TELL OR
THE PERSON'S MEMORY IS GOING TO STEM FROM ELECTRICITY PHOTO ARRAY THAT'S BEING SHOWN
DURING TRIAL PREP, THEN THE PROSECUTOR SHOULD DO HIS BEST TO TRY TO LAY A FOUNDATION IN
COURT WHEN THAT WITNESS IS TESTIFYING TO SEE IF THEY HAVE AN INDEPENDENT RECOLLECTION
OF THAT PERSON THERE WHAT OCCURRED DURING THE EVENT. PER. ASSOCIATE JUSTICE
RACHEL WAINER APTER: BUT YOU'RE SAYING THAT THAT INDEPENDENT RECOLLECTION WILL ALWAYS
EXIST IF THEY PREVIOUSLY I.D.ED THE PERSON. MR. KLEIN: NO I'M NOT YOUR HONOR.
AIM CERTAIN THERE ARE GOING TO BE CASES WHERE IF THE PROSECUTOR ASKED THAT, THE PERSON
MAY SAY NO. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS: CASES WHERE TIME HAS PASSED,
IF IF THE COMBD INCIDENT HAPPENED 4 YEERTSZ PRIOR, THE WITNESS COULD GO TO COURT AND SAY
NO, I CAN'T IDENTIFY THE PERSON IN COURT. I HAVE NO RECOLLECTION OF WHAT THEY LOOKED LIKE
BUT MAY HAVE IDENTIFIED THEM PREVIOUSLY IN A PHOTO ARRAY 4 YEARS AGO. MR.
KLEIN: THAT'S RIGHT YOUR HONOR AND THAT'S SORT OF THE BUILT IN PROTECTION FOR EVERYBODY
WHICH MAKES -- WHICH BRINGS ME TO SOMETHING I WANTED TO TOUCH ON. PROSECUTORS
WHO, YOU KNOW, CERTAINLY THIS ISN'T SOMETHING THAT WE WOULD CALL THEM MODEL IN EVERY
CASE. IT'S NOT SOMETHING THAT SHOULD BE DEALT WITH WITH A 1 SIZE FITS ALL RULE BECAUSE
IT MAY BE USED IN SOME CASE DZ SUCCESSFULLY BUT I WANT TO EMPHASIZE THAT PROSECUTORS WHO
DO THIS WILL DO THIS AT THEIR OWN PERIL BECAUSE 1, IF THERE'S A WITNESS DURING TRIAL PREP
WHO DOES NOT RECOGNIZE THE PHOTO ARRAY AND WHETHER THEY ARE ASKED IS THIS THE PHOTO THAT
YOU CHOSE, THEY SAY NO, THAT'S SKUPTD TRI EVIDENCE THAT HAS TO BE TURNED OVER. 2, AND
WHAT I WOULD FIND MORE CONCERNING, NOT MORE CONCERNING BUT PERHAPS MORE OF SOMETHING TO
DISSUADE THAT KIND OF LINE OF QUESTIONING, A SKILLED DEFENSE COUNSEL COULD VERY WELL USE
THE INTERVENING SHOWING OF THE PHOTOGRAPHIC ARRAY DURING TRIAL PREP TO UNDERMINE A LATER
IN COURT IDENTIFICATION. SO THOSE ARE THINGS I THINK THAT MIGHT DISSUADE PROSECUTORS FROM
OVER USING THIS KINDS OF PROCESS. CHIEF JUSTICE STUART RABNER: WHAT'S THE
TIME INTERVAL?^ YOUR FIRST FACTOR THAT WOULD WARRANT ALLOWING THE WITNESS TO SEE A PHOTO
AGAIN, A PHOTO FROM A PREVIOUS ARRAY. MR. KLEIN: WELL, IT'S HARD TO GIVE A
1 SIZE FITS ALL ANSWER, BUT I CERTAINLY SUPPOSE WITH CASES COMING OUT OF PANDEMIC THAT
IT'S NOT UNCOMMON TO HAVE TRIALS THAT ARE 2 YEARS, 3 YEARS, 4 YEARS AFTER THE ORIGINAL
EVENT. CHIEF JUSTICE STUART RABNER: AND EVEN BEFORE THE PANDEMIC, WHAT WAS
THE LENGTH OF TIME, AN ORDER LENGTH TRIAL TO GET TO TRIAL ON A HOMICIDE CASE. MR.
KLEIN: I MEAN IT WASN'T UNCOMMON TO HAVE A 4-YEAR GAP IN THAT INSTANCE. THE COURT:
SO THE CONCESSION THAT THE ATTORNEY GENERAL HAS THOUGHTFULLY MADE, AS YOU CONCEDE, BECAUSE
OF MUGSHOT EXPOSURE TO AVOID THE POTENTIAL FOR MUGSHOT COMMITMENT, OR INCREASED CONFIDENCE,
THE IS HE FLAR I DON'T THAT WE'RE SETTING UP COULD LEAD TO BOTH THOSE THINGS IN MANY SO
OF THE MOST SERIOUS CHARGES THAT DEFRTSDZ WOULD FACE. MR. KLEIN: I MEAN I THINK
THAT'S SOMETHING THAT WE TAKE SERIOUSLY BUT IT'S SOMETHING THAT WE FEEL CAN BE DEALT WITH
BASED ON SAFEGUARDS THAT THE COURT CAN IMPOSE IN THE ADDITION TO THE SAFE GARTDZ THAT
ALREADY ATTEND THE DUE PROCESS RIERMENTSZ THAT ARE INHERENT IN THE COURT RULES.
SO WRITTEN DISCLOSURE REFERRED TO IN WATSON. MANY I THINK JUSTICE PATERSON ASKED THIS COULD BE
A VERY INTRUSIVE PRACTICE THAT BUT UNDER RULE 311 B, THERE IS A PROVISION WHICH WOULD
REQUIRE THIS COURT TO TREAD NO NEW GROUND BY SIMPLY SAYING THE DETECTIVE WHO IS PRESENT
WITH THE PROSECUTOR WHEN THIS TRIAL PREP SHOWING OF THE HENDERSON COMPLIANT ARRAY IS DONE
CAN IN WRITING DO A DETAILED SUMMARY WITH A VERBATIM ACCOUNT OF ALL RELEVANT AND
NONVERBAL AND NONVERBAL EXCHANGES BETWEEN THE OFFICER AND THE WITNESS. AND THAT COULD BE
SOMETHING THAT WHEN ADDED TO THE PROTECTIONS OF MOTION PRACTICE, CROSS-EXAMINATION
RECOLLECTION JURY INSTRUCTIONS, CLOSING ARGUMENT, ARE ADEQUATE TO PROTECT THE DUE PROCESS
RIGHTS OF THE DEFENDANT WHEN THE ARRAY IS SHOWN DURING TRIAL PREPARATION WHICH BY THE
WAY, ISN'T NECESSARILY SOMETHING THAT'S GOING TO BE SUGGESTIVE PARTICULARLY IN THE SCENARIO
THAT WE'RE DEALING WITH WHICH IS WHEN SOMEBODY HAS ALREADY PICKED OUT IN A HENDERSON
COMPLIANT ARRAY A PERSON, THE PERSON OUT OF THAT ARRAY SHORTLY AFTER THE EVENT PRESUMABLY.
NOW, CERTAINLY, WE DON'T. CHIEF JUSTICE STUART RABNER: IS THERE
A LIMIT ON THE NUMBER OF TIMES THAT 1 CAN SHOW DURING TRIAL PREP IF A CASE IS REPEATEDLY
PUT OFF. MR. KLEIN: I DON'T WANT TO PUT A HARD AND FAST LIMIT ON IT IT OTHER
THAN TO BE GIVEN, I THINK THAT'S A FAIR AND PRACTICAL CONCERN THAT THE PROSECUTOR BROUGHT
UP THAT IT'S VERY DIFFICULT TO PREDICT WHEN THE TRIAL IS GOING TO TAKE PLACE. I DO THINK
IT'S FAIR, HOWEVER, TO SAY THAT IT'S MULTIPLE SHOWINGS ARE NOT ENCOURAGED R MULTIPLE
SHOWINGS ARE NOT ENCOURAGED AND THAT CAN WEIGH IN THE ANALYSIS. BUT THAT SAID,
WE RECORDS TO BE SURE THAT THERE ARE BENEFITS TO RECORDATION.^ THAT'S SOMETHING THAT I
THINK THAT SOMEBODY RECOGNIZES TO SOME EXTENT BUT THAT DOESN'T MEAN THAT THAT'S THE ONLY
FACTOR AND THAT DOESN'T MEAN THAT THE PRACTICE OF LAID OUT IN 3: 11 B CAN'T SUFFICE TO
PROTECT DUE PROCESS AND TO PROTECT THE PROCESS GIVEN THE COUNTER AVAILING INTERESTS OF THE
STATE. AND THOSE ARE, 1, IT'S VERY DIFFICULT FOR US TO GET OUR WITNESSES IN TO PREP FOR
TRIAL AS IT IS. I CAN'T IMAGINE HOW MUCH MORE DIFFICULT IT IS GOING TO BE TO GET THEM
TO PREP IF WE WANT TO SHOW THEM THE ARRAY AFTER A LONG STRETCH BETWEEN THE EVENT AND THE
TRIAL PREP SESSION IF WE'RE GOING TO HAVE TO TELL THEM THAT IT'S GOING TO HAVE TO BE RECORDED
AND TURNED OVER TO THE DEFENDANT HIMSELF. I THINK THAT'S GOING TO PRESENT AN OBSTACLE
THAT DOESN'T NEED TO BE DEALT WITH GIVEN THAT WE CAN HAVE THAT EXCHANGE MEMORIALIZED AND
THEN TURNED OVER BY A DETECTIVE. ASSOCIATE JUSTICE ANNE M. PATTERSON: ARE
YOU SAYING FEAR OF RETRIBUTION OR WHAT WOULD BE THE DISTINCTION BETWEEN. MR.
KLEIN: WELL THERE'S THE FEAR OF RECONTRIBUTION, OF COURSE. THERE IS ALSO THE FEAR OF A
VICTIM WHO HAS BEEN TRAUMATIZED AND WHOSE QUITE FRANKLY TERRIFIED OF EVEN COOPERATE WG
A PROSECUTOR AND GOING OVER DETAILS OF THE CASE. I MEAN ONCE THEY HEAR THAT IT'S GOING
TO BE RECORDED, I MEAN RERM IT'S, I DON'T THINK IT'S SPECULATIVE OR UNREASONABLE TO SUGGEST
THAT IN MANY CASES IT'S GOING TO BE UNPRODUCTIVE. IT'S GOING TO HURT THE ABILITY OF THE
WITNESS TO PREP GIVEN THE STATE'S DUTY TO PREPARE THEIR CASE BEYOND A REASONABLE DOUBT
AND IT'S GOING TO HURT THE PROSECUTOR WHO HAS A DUTY TO PROVE HIS CASE BEYOND A REASONABLE
DOUBT. ASSOCIATE JUSTICE NORIEGA: NOT TO BELABOR THIS POINT, BECAUSE I UNDERSTAND
WHERE YOU ARE IN YOUR ARGUMENT, BUT WHAT WOULD THE DIFFERENCE BE OF THE MEMORIALIZED
STATEMENT THAT'S WRITTEN DOWN IN THE SUMMARY BEING TURNED OVER VERSUS A VIDEO. WHY WOULD
YOU HAVE TO TELL THE VICTIM 1 OVER THE OTHER WHEN. WOULDN'T YOU HAVE TO SUPPLY BOTH.
MR. KLEIN: BECAUSE IN THE INSTANCE WITH RECORDING, WE WOULDN'T HAVE TO TELL
THE VICTIM, IN THE INSTANCE, EXCUSE ME, WITH THE WRITING, WE WOULDN'T HAVE TO HE WILL
IT AT A TIME VICTIM THIS IS GOING TO BE RECORDED AND WE'RE GOING TO BE TURNING IT OVER
TO DEFENSE COUNSEL. THAT'S NUMBER 1. BUT THAT'S NOT THE ONLY THING. IT IS INN TRUCIVE
IN THAT IT MAY INFRINGE ON ATTORNEY WORK PRODUCT AND CONVERSATIONS THAT THE THE STATE
IS HAVING WITH THEIR WITNESS MAY BE CONSTRAINED IN A WAY THAT'S NOT REASONABLE RECHLT.
ASSOCIATE JUSTICE NORIEGA: ATTORNEY WORK PRODUCT FOR THE PROSECUTOR.
MR. KLEIN: YES, YES. SO, IN SUM, RECORDATION, BUT IT ISN'T THE ONLY FACTOR BUT WHAT WE'RE
PUTTING FORWARD IS THE HARMS THAT COULD BE CAUSED BY RECORDATION THEY COULD BE OUTWEIGHED
BY THE BENEFITS PARTICULARLY WHEN THERE'S AN ALTERNATE PROCEDURE THAT IS PRE PACKAGED
IN RULE 3: 11 B THAT IS ACCOMPANIED BY WRITTEN NOTICE AND THAT WILL BE SUBJECT TO FUTURE
DUE PROCESS PROTECTIONS, CROSS-EXAMINATION, JURY INSTRUCTIONS AND THE LIKE LATER IN COURT
R. CHIEF JUSTICE STUART RABNER: CAN WE GO BACK TO SUGGESTIVENESS. I'D LIKE
TO YOU HELP US A LITTLE BIT MORE WITH RESPECT TO THAT CONCERN R THE D.A.G. ACKNOWLEDGES,
DO PROSECUTORS IN YOUR EXPERIENCE SHOW PHOTO ARRAYS OR INDIVIDUALS WHOM A DEFENDANT HAS
EITHER WRONGLY IDENTIFIED OR NOT IDENTIFIED BEFORE. MR. KLEIN: NO, NO, THAT'S
NOT SOMETHING. CHIEF JUSTICE STUART RABNER: SO WHAT IS THE MESSAGE THEN WHEN
THE PHOTO ARRAY OR LET'S PUT ASIDE THE THE SINGLE PHOTO BUT THE PHOTO ARRAY WHERE THEY'VE
IDENTIFIED THE DEFENDANT IS SHOWN MULTIPLE TIMES, WHAT IS THE MESSAGE TO THE DEFENDANT
THEN. MR. KLEIN: I'M NOT SURE I UNDERSTAND THE DISTINCTION BETWEEN THE FIRST
SITUATION AND THE SECOND SITUATION. CHIEF JUSTICE STUART RABNER: FIRST SITUATION
IS YOU SHOW SOMEONE AN ARRAY AND THEY EITHER PICK OUT THE WRONG DEFENDANT OR THE WRONG
PERSON OR NO 1. IN YOUR EXPERIENCE, DURING PREP, THAT'S NOT SOMETHING YOU WOULD BE SHOWING
TO THE WITNESS AGAIN, OR IS IT. MR. KLEIN: IT'S NOT, AND I THINK I UNDERSTAND
WHAT YOUR HONOR IS GETTING AT NOW. I THINK IT'S GOING TO COME DOWN TO THE CIRCUMSTANCES.
I THINK IT COULD BE DONE IN A WAY THAT'S NONSUGGESTIVE. I THINK THAT VIEWING SHOULD BE
LIMITED. CHIEF JUSTICE STUART RABNER: IS THE VERY ACT OF SHOWING THE PHOTO,
I'M NOT SUGGESTING THERE'S ANYTHING UNTOWARD IN THE WAY IT'S BEING CONDUCTED BUT ACCORDING
TO WHAT WE KNOW ABOUT HUMAN MEMORY, IS THE VERY ACT OF SHOWING THE PHOTO REPEATEDLY LIKELY
TO INFLUENCE THE WITNESS'S IDENTIFICATION. MR. KLEIN: SO I THINK, I MEAN I
THINK ONCE YOU BRING IT TO THE EXTREME, IF YOU'RE SHOWING IT MANY TIMES TO THAT PERSON,
THEN IT'S GOING TO BE MORE LIKELY TO INFLUENCE THE IDENTIFICATION. I THINK IF WHAT I
WOULD PRESUME HAPPENS IN THE VAST MAJORITY OF CASES WHERE THIS IS DONE AND IT'S RARELY
DONE, IF IT'S SHOWN AND THE QUESTIONS ARE NEUTRALLY PHRASE INTERESTED NONSUGGESTIVE,
THE PERSON IS SIMPLE BEING ASKED IF THE ARRAY IF THEY THAT THEY PREVIOUSLY CHOSE THE DEFENDANT
OUT OF, IS THIS THE ARRAY, IS THIS THE PHOTO THAT YOU CHOSE AND I THINK THAT'S FAR CRY
IN TERMS OF SUGGESTIVE NEGS FRE WHAT HAPPENS IN OTHER SCENARIOS. I MEAN JUST TO TAKE
1 EXAMPLE, A FIRST TIME IN COURT IDENTIFICATION WHICH CAN BE DONE FOR A GOOD REASON.
ASSOCIATE JUSTICE NORIEGA: BUT THE INDIVIDUAL IS NOT BEING ASKED TO DO A BLINDS PHOTO
ARRAY SELECTION DURING TRIAL. SO WHEN THEY ARE BEING ASKED TO REVIEW THE PHOTO ARRAY AT
TRIAL, THEY ARE JUST SIMPLY BEING ASKED TO CONFIRM THAT THEIR NAME IS ON THE BACK SHALL,
THAT THIS IS THE 1 THAT THEY SELECTED AND REALLY IT'S THEIR SIGNATURE THAT WILL HELP THEM
CONFIRM THAT MORE SO THAN THE ACTUAL PHOTO. SO ISN'T IT FAIR TO SAY THAT THE REALITY OF
SHOWING THEM THE PHOTO ARRAY AGAIN AND AGAIN AND THE DEFENDANT'S PHOTO IS TO ALLOW THEM
WHEN THEY GET TO TRIAL TO REMEMBER THAT THE PERSON SITTING IN THE COURTROOM IS THE PERSON
THAT THEY IDENTIFIED IN THE PHOTO. ISN'T THAT REALLY THE REASON. MR. KLEIN:
SO I THINK THAT THERE CAN BE SITUATIONS WHEN THAT IS A CONCERN. AND, YOU KNOW, THAT'S,
THERE CAN BE A SITUATION WHEN THAT'S A CONCERN BUT I DON'T KNOW IT'S TRUE THAT WE'RE SIMPLY
DOING THIS TO REINN FORCE THE MEMORY OF THE VICTIM SO THAT THEY CAN TESTIFY WITH MORE
CONFIDENCE AT TRIAL. I THINK IT HAS TO BE A 1 -- IT HAS TO BE A MULTI FACETTED CASE BY
CASE ANALYSIS BECAUSE TAKE 2 EXAMPLES, TAKE EXAMPLE A. THE PROSECUTOR CAN HAVE A WITNESS
WHO IS SHOWN THE ARRAY 1 TIME AND THEN ASKS THE PERSON DURING PREP IS THTD ARRAY, IS THIS,
I KNOW IT'S BEEN A FEW YEARS, PLEASE TELL ME THAT'S THE PHOTO THAT YOU SAW AND THAT'S
IT AND GOES TO TRIAL AND THEN THERE COULD BE THE SITUATION WHERE HIGHER ON THE SPECTRUM
OF SUGGESTIVE NEGS THE PROSECUTOR SHOWS THE ARRAY, YOU KNOW, 5 TIMES OR 6 TIMES OR 10
TIMES TO THE WITNESS AND THAT'S SOMETHING THAT THE COURT WILL WEIGH CASE BY CASE AND.
BUT I THINK 1 IMPORTANT THING THAT I WANT TO EMPHASIZE IS THAT THE GOOD REASON
STANDARD THAT WE'RE PUTTING FORWARD IS 1 THAT ALLOWS FOR THE FLEX IBLTD THAT IS NECESSARY
TO DEAL WITH THE SITUATION DUSH WITH THE FACT THAT NOT ALL SUGGESTIVENESS, ALLEGED
SUGGESTIVENESS IS EQUAL IN EVERY SDWAGS. CHIEF JUSTICE STUART RABNER: IS THE
RECORDS AND THE SOCIAL SCIENCE THAT THE COURT REVIEWED PREVIOUSLY AND WHAT'S PRESENTED
IN THIS CASE SUFFICIENT TO DEAL WITH THE SITUATION THAT WE'RE TALKING ABOUT,
REMEMBERED RECOLLECTION ON MULTIPLE OCCASIONS AFTER HAVING MADE AN IDENTIFICATION
APPROPRIATELY FROM A PHOTO ARRAY OR DO WE NEED MORE. MR. KLEIN: I THINK THAT THE
SOCIAL SCIENCE RECORD IS ADEQUATE. WHATHS INTERESTING ABOUT IT IS THAT NOTHING THAT I
CAME ACROSS DMT SOCIAL SCIENCE SEEMS TO ADDRESS DIRECTLY ON POINT THE SITUATION THAT WE'RE
DEALING WITH HERE. I MEAN, YES, THERE ARE -- IT TALKS IN BROAD STROKES ABOUT MEMORY DECAY
AND ABOUT THE THE EFFECTS SUCCESSIVE VIEWINGS, THE EFFECT OF SUCCESS SIF VUGSZ BUT IT
DOESN'T IN ANY SENSE PRECLUDE -- IT IF IN ANY SAY SENSE THAT REFRESHING RECOLLECTION IS
NOT SUPPORTED BY SCIENCE. NUMBER 1. AND IT'S IMPORTANT TO NOTE THAT EVERY
SCIENTIFIC STUDY THAT'S PUT OUT THERE IS TO BE DEFINED BY THE QUESTION UNDER CONSIDERATION
AND SORE THE REACHING OF A CONCLUSION IN 1 STUDY ABOUT THE DECAY OF MEMORY AND THE WAY
IT BOSHGS MAY NOT APPLY WITH THE SAME FORCE IN ANOTHER STUDY MAYBE 1 THAT DOESN'T EXIST
YET THAT ADDRESS AS DIFFERENT QUESTION ABOUT VIEWINGS IN THIS CONTEXT. ANYTHING WOULD YOU
LIKE TO ADD. MR. KLEIN: I WOULD JUST ASK THAT YOU TAKE HOLD THAT PROSECUTOR
DZ CAN FOR A GOOD REASON SHOW THIS HENDERSON COMPLIANT ARRAY IN TRIAL PREP TO A WITNESS
WHO PREVIOUSLY PICKED'S SUSPECT OUT OF THE ARRAY. WE AGREE WITH THE NOTICE REQUIREMENT
SET OUT IN WATSON AND WE WOULD ASK THIS COURT THAT WRITTEN DISCLOSURE RATHER THAN
RECORDATION BE IMPOSED AS A PRECONDITION WHEN FORMULATING ITS OPINION ON THIS QUESTION
FECHLT. ASSOCIATE JUSTICE ANNE M. PATTERSON: I'M VOIR, THAT LAST PART I
MISSED. MR. KLEIN: WE WOULD ASK THIS COURT TO REAFFIRM WHAT WATSON SAID THAT
GOING FORWARD THERE MUST BE WRITTEN DISCLOSURE IF WITNESSES DURING TRIAL PREP ARE SHOWN
PHOTO ARRAYS THAT THEY PREVIOUSLY PICKED THE DEFENDANT OUT OF. AND TO AFFIRM THE JUDGMENT
OF THE APPELLATE DIVISION. ASSOCIATE JUSTICE ANNE M. PATTERSON: BUT YOU DO
NOT FEEL A RECORDING. MR. KLEIN: NO RECORDING. I'M SORRY, IF THERE'S SOME
CONFUSION WITH THAT LAST REMARKS. MY APOLOGIES. ROBIN KAY LORD: I
THINK SOME SFAKTS HAVE YOU EVER WORKED MISSTATED NOT INTENTIONALLY BUT NOT
CONSISTENT WITH THE RECORD. IF I CAN JUST START BY SAYING THE SUGGESTIVENESS OF
SHOWING THE PHOTOS IT DOESN'T JUST LARNL WILL RELIABILITY OF THE IN COURT
IDENTIFICATION I THINK THAT IS "IMPORTANT TO KNOW, BECAUSE IT ALSO AFFECTS THE
DESCRIPTION OF THE INDIVIDUAL, THE DESCRIPTION OF THE PERPETRATOR, AS IT
OCCURRED HERE. SO THE WHAT'S BEEN REFERRED TO AS THE EVIL CONTACT NEEFL PHOTO WHAT
WE HAVE NOT BEEN TACKING ABOUT IS THAT HE IS WEARING GLASSES. HE IS WEARING
THESE DESIGNER GLASSES AND THEN YOU HAVE PETERSON WHO GIVES A STATEMENT NUMBER ONE
TO THE POLICE AND SAYS THAT THE INDIVIDUAL WAS NOT WEARING GLASSES AND THEN BY
THE TIME HE'S DONE WITH THE." JUSTICE WAINER APTER: THE INDIVIDUAL
WAS NOT WEARING GLASZ EAST OR DOESN'T SAY THE INDIVIDUAL WAS KWEERG GLALS
EAST. ROBIN KAY LORD: HE IS ASKED TO DESCRIBE HIM AND HE
DOES 23409 INCLUDE IN THE DESCRIBE AS OTHERS DOES NOT INCLUDE GLASSES.
JUSTICE WAINER APTER: CORRECT BUT THEN THE POLICE DON'T FOLLOW UP AND SAY WAS
THE INDIVIDUAL WEARING GLASSES AND HE RESPONDS NO HE JUST DOESN'T OFFER
THAT THE INDIVIDUAL WAS WEARING GLALS EAST CORRECT. ROBIN KAY LORD:
I AGREE WITH THAT. BUT IF THE INDIVIDUAL WAS WEARING GLASSES WOULD ASSUME WHEN
YOU ARE ASKED TO DESCRIBE WHAT HE WAS WEARING, HIS HAIR STYLE, HIS FACE,
THAT HE WOULD INCLUDE GLASSES IF IN ACCOUNT IF A THE SHOOTER HAD GLASSES. WHAT
HAPPENS AT TRIAL AFTER FIVE TIMES WITH THE PROSECUTOR, FIVE TIMES, IS NOW
THE NO GLASSES NOT JUST BE DOM GLASSES ABOUT YOU THEY BECOME DESIGNER GLASSES.
AND THE POINT THAT THE PROSECUTOR DID IN FACT HAVE TO STIPULATE WITH RESPECT
TO WHAT HE WAS SHOWN, THIS IS 6 T DURING THOSE THIS IS LINE 12 DURING THOSE
THIS IS ME DURING THOSE FIVE TIMES YOU REVIEWED YOUR TESTIMONY RIGHT HE SAYS YES.
JUSTICE PATTERSON: I AM SORRY 6 TEE WHAT PAGE.
ROBIN KAY LORD: PAGE 127 I APOLOGIZE. LINE 12. DURING THOSE FIVE TIMES YOU
REVIEWED YOUR TESTIMONY RIGHT YES AND YOU WERE SHOWN PHOTOGRAPHS RIGHT?
NO. I WAS NOT SHOWN PHOTOGRAPHS. QUESTION: YOU WEREN'T SHOWN PHOTOGRAPHS? ANSWER
WE TALK AND THAT WAS IT. QUESTION: IF I TELL YOU THERE WAS A RENGS YOU WERE
SHOWN PHOTOGRAPHS WOULD YOU CHANGE YOUR MRIEND? NO IT WOULD NOT. THEN I SAY IS
THE PROSECUTOR LYING I ASK FOR A STIP UNLS AND THE PROSECUTOR STIPULATES. SO
THE POINTS OF I DON'T KNOW HOW THEY CAN TAKE THE FOGS WE SHOULD THAN BE RECORD
THG WHEN THE WITNESSES THEMG RECEIVES DON'T REMEMBER BEING SHOWN THESE PHOTOGRAPHS.
I MEAN. CHIEF JUSTICE RABNER: WHAT WAS THE SPECIFICS
FTS STIP IF YOU CAN TELL US. ROBIN KAY LORD: I WOULD LIKE A
STIPULATION, THE STALT WILL STIP UM THIS IS 128 LINE NINE THE STATE WILL STIP YOU WILL
THAT HE WAS IT MAY NOT HAVE BEEN IN THAT FORM BUT THE STATE WILL STIM THAUM
HE WAS SHOWN THE MACHINE EAST BEFORE TRIAL. I AM NOT SURE WHAT DAY.
SO THE PROSECUTOR DOES IN FACT STIPULATE THAT HE WAS SHOWN PHOTOS. EVEN PROVES
THE POINT IT NEEDS TO BE RECORDED WE SHOULD THAN BE IN A SIGNATURES HERE.
JUSTICE SOLOMON: WOULDN'T A WRITTEN SUMMARY AND A VERBATIM
TRANSCRIPT OR NOTES VERBATIM OF WHAT OCCURRED DO THE SAME THING AS A RECORDING
SDM IT WOULD TELL YOU WOULD TELL HIM THIS IS WHAT LAPD AND WHEN IT HAPPENED
PRETRIAL. ROBIN KAY LORD: A REPORT WILL NOT REFLECT THE KWIS
ASKED EXACTLY AND WE HAVE LEARNED FROM. ROBIN KAY LORD:
JUSTICE SOLOMON: WE ARE TALKING YOU WILL KNOW HE WAS SHOWN THE PHOTOGRAPH.
IT WILL SOLVE THE PROBLEM THAT YOU ARE RAISING NOW. ROBIN KAY
LORD: IT WON'T IT WILL SOME OF THE PROBLEM AS FAR AS IEK IT WON'T SOME OF THE
PROBLEM LOOK AT THOSE GLASSES WAS HE WEARING THOS CLEES EAST WHICH WIE
DOEFRN KNOW FIT OCCURRED OR DIDN'T RECORD IT WOULD RECORD THE MAJORITY OF THESE
WITNESSES WHEN THEY GOOT THE WITNESS STANTD STARTDZED TALK BGS GLASSES.
JUSTICE SOLOMON: PRESUMENT BLEE 311 COMPLIANT RECORDING OR RECORD IT
WOULD DO ALL THAT. ROBIN KAY LORD: IF IT WAS ELECTRONICALLY
RECORDED. JUSTICE SOLOMON: IF IT WAS A RECORD OF WHAT WAS
ASKED SHTHS WHA WAS SAID, AND IT WOULD SAY ALL THAT. ROBIN KAY LORD:
I WOULD LIKE IT BETTER I WOULD BE BETTER NOTICE I DON'T IT SOME OF HIS THE
PROBLEM. SO ALSO I THINK WHAT NEEDS ALSO TO BE EMPHASIZED IF
I CAN ISS 14. NOWS 14 THIS IS THE FACE BOOK PHOTO THINKS THE FACE BOOK PHOTO THAT
WAS SENT VIA TEXT NECESSARY AGE TO SCOTT THE SON AND HE DID IN FACT TESTIFY
AT TRIAL THAT IT WAS GIVEN THO TLIM FROM HENDRICKS AND HENDRICKS GOTD IT FROM A
BAR TENTDER THAT WASN'T WORKING THERE. THE FACT THAT HENDRICKS DOESN'T
REMEMBER GIVING IT TO SCOTT IS PROBLEMATIC IT DOESN'T MEAN IT DIDN'T HAPPEN THIS
IS SKOTS' TESTIMONY. AND I WOULD SUGGEST THAT AND DISAGREE WHERE THE STATE'S
REPRESENTATION OF THE RECORD AS FAR AS WHAT HENDRICKS SAYS. THIS IS 6 TFRMENT
PAGE 240: THIS IS WHEN I'M REVIEWING WITH HER THE BODY KAM OF THE OFFICER WHERE
SHE'S TALKING ABOUT WHEN SHE IS DESCRIBING THE INDIVIDUAL. QUESTION, LINE
2: SHE'S ASKING YOU ABOUT TO DESCRIBE THE SHOOTER THE PERSON WHO SHOT THE PERSON
WHO WAS THROWN OUT THE PERSON WHO WAS INVOLVED IN THE AULTD INDICATION,
GREED? ANSWER: THAT'S GREED QUESTION: HAN WHEN SHE ASKED YOU ABOUT TS PERSON
WHO WAS THROWN OUT THE PERSON WHO WAS INVOLVED IN THE AULTD INDICATION,
YOU PROCEEDED TO TELL HER THAT THE PERSON HAD DREDZ LIELT SKIN AND YOU DIDN'T RECALL
A BEARD AND HE WAS YOUNG UNDER 30 AND YOU HAD NO IDEA WHAT HE WAS WEARING
RIGHT? SHE SAYS CORRECT. THERE IS NO DOUBT WHEN SHE'S SHE JUST RECEIVED THIS
PHOTO AND IT'SS 14 THE INDIVIDUAL CLEARLY HAS DREDZ AND BY THE WAY, HE'S ALSO
WEARING SUNGLASSES WHICH LEADS ME TO HOW SCOTT SENIOR THE FATHER CHANGED HIS TESTIMONY
TO INCLUDE SUNGLASSES BECAUSE THEY WERE TALKING ABOUT A PHOTOGRAPH I.E.
THIS PHOTOGRAPH BECAUSE THIS IS THE PHOTOGRAPH SCOTT JUNIOR HAD. IT JUST IS DE
MONSTRATIVE HOW PERSON'S MEMORANDUM REESZ OF EVENTS CAN BE ALTERED BAY NOT
ONLY WHAT IS SHOWN THO THEM BUT BY WHAT IS BEING SAID. IN ADDITION TO HENDRICKS
CHANGING -- LET ME WITHDRAW ANOTHER FACT I NEED TO EMPHASIZE RESPECTFULLY IS
THE FACT THAT THIS PHOTOS 14 NOT JUST WAS BEING DIFFICULTIES SEMG FLATED AT THE
VCHLTH F W BUT IT WAS TAKEN TO THE POLICE STATION WHILE THEY WERE WAITING TOK
INTERVIEWED BECAUSE THE TESTIMONY REFLECTS OH DON'T LOOK AT IT THE DAUGHTER
WAS THERE OF PEELT SON, SO RIGHT BEFORE TLEG IN FOR THEIR TUFRGS THEY HAVE THIS
FRESH IN THEIR MIND THIS IS NOT AN OTHERWISE COMPLIANT HENDZ SOUTHERN
COMPLIANT IDENTIFICATION. WE HAVE NO KNOWLEDGE OF ALL THIS WE LEARN THERE THROUGH
THE COURSE OF TRIAL I ASKED THE JUDGE I BEG THE JUDGE TO PLEASE GIVE US A
HEARING SO WE CAN FLESH THAT OUL OUTS AND IT WAS DENY THIS SHOULD NOT HAVE HAPPENED.
AS FAR AS PETERSON IS CONCERN I TALK ABOUT HOW DESIGNER GLASSES NO GLASSES
CHANGE TODD DESIGNER HE ALSO VIEWED THE PHOTOGRAPHS IN ONE SHEET WHAT IS THAT ABOUT?
TO THIS DAY WE DOERN KNOW WHAT'S ABOUT. EVERY WITNESS SAWS 14 HEN DESCRIBING
SAWS 14 PETERSON DAUGHTER HADS 14 SCOTT JUNIOR SAWS 14, SCOTT SENIOR SAWS 14, ANIMATE
THUS MACHT THUS SEES D-11 WHY DID I ASK MATTHEWS ON RERECROSS EXAMINATION
THAT'S NOT THE PERSON WHO SHOT BECAUSE THE PROSECUTOR REPRESENTED HE CAN'T IDENTIFY
THE SHOOTER. I DEENT KNOW WHERE THAT CAME FROM. HOW WHERE WOULD THAT COME
FROM OTHER THAN THE PROSECUTOR ASKING HIM PRETRIAL PREP CAN YOU IDENTIFY THE SHOOTER?
BECAUSE SUPPOSED LIE IF YOU FOLLOW THEIR LOJ IKS MATTHEWS NEW HIM HE CAME IN
THERE REGULARLY HE WAS A REGULAR WHAT FIVE TIMES EVERY TWO MROS OR SOMETHING LIKE
THAT, IF HE NEW HIM IF HE WAS SO FAMILIAR TO HIM WHY COULDN'T REROISZ HIM OR IDENTIFY
HIM? THAT'S SOMETHING I SHOULD HAVE KNOWN IN ADVANCE. BUT DIDN'T. AND
THEN WHEN I SHOW HIM THIS ON THE WITNESS STAND MEANING D-11, OKAY LOOK AT THIS
NOTE TOE WHICH HE DENIES SEEING HE SAYS HE'S NEVER SEEN THIS BEFORE, ALL
RIGHT, AGAIN ANOTHER REASON WHY WE NEED TO RECORD, WHAT HAPPENS? HE SAYS NO THAT'S
NOT THE SHOOTER THAT IS NOT THE GUY WHO SHOT ME. SO FROM THAT LOGIC DICTATES OKAY
THAT'S NOT THE GUY WHO SHOT. SO I THINK THAT'S SORT OF AND WE ALL KNOW
HIS ANSWER. I THINK THAT ALSO PROFITS THE POINT, THAT THE WITNESSES' MEMORY WAS
AURLT ERD BIELT PHOTOGRAPHS HE REPEATEDLY SAW THAT IS WHAT PROVES THE POINT
AND I WAS LUL INTO A FALSE SENT OF SECURITY BECAUSE OF THAT. TO THIS DAY WE DON'T
KNOW WHAT THE OTHER PHOTOS ARE. IF YOU REMEMBER WREE WENT TO SIDE BAR THEY
STUART TALKING ABOUT AN IF YOU ARE COAT, I AM SORRY YEAH AN IF YOU ARE JACKET.
THAT IS NOT IN HIS STATEMENT IS THAT IS THAT WHEN I STARTED HE IS TALKING
ABOUT AN IF YOU ARE JASHG NOW IF HE TELLS YOU SOMETHING INCONSISTENT YOU HAVE TO
TELL ME THAT. THEY DIDN'T TELL ME ANY OF THIS. THIS WAS NOTHING BUT GAMESMANSHIP
AFTER GAINS MAN SHAN WITHHOLDING INFORMATION FROM US OVER AND OVER AND
OVER AGAIN AND I THINK THAT IS WHY PUT THE PROPOSITION ASIDE AS TO WHAT WE ARE GOING
FOR LOOK AT WHAT HAPPENED TO BRANDON WASHINGTON IN THIS CASE AND HOW HE
WAS DEE MRIEFD A FAIR TRIAL BECAUSE WE WERE HURNING AND PEKING AND BEGGING AND
BORROWING AND STEALING THROUGHOUT THE TRIAL FOR THIS INFORMATION IT SHOULD
THAN HAPPEN LOOK I CAN THAT. AND THE PROSECUTOR HE CAPITALIZED ON ALL THIS. IN
SUMMATION AND HE TELLS THE JURORS THAT FOR ALL OF YOU TO FINE HIM NOT GUILTY YOU
HAVE TO BELIEVE EACH OF THESE WITNESSES ARE LYING TO YOU NOW I KNOW I RAISE THAT HAD
AND IT IS NOT BEFORE THIS COURT AND I GOOD ET THAT BUT THAT'S THE OVERALL
TOTALITY OF THE PREJUDICE TO THE DEFENDANT BECAUSE THE WITNESS WE ALL KNOW THE SOCIAL
SCIENCE THEY DON'T HAVE TO BE LYING THEY CAN BE MISTAKEN AND WHY ARE THEY
MISTAKEN THEY ARE MISTAKEN BECAUSE THEY HONESTLY BELIEVE FLORIDA IT IS TRUE AND
THEREFORE CROSS-EXAMINATION CAN'T HELP IT AND THE REASON THEY HONESTLY BELIEVE
IT IS TRUE BASIS BECAUSE THE PHOTOS WERE SHOWN TO THEM WITH FEEDBACK CONFIRMATION
IS THIS GUY YOU PIBLG OUT THE GOO I ON TRIAL THE PREJUDICE BEGAN FROM
BEGINNING TO END IN THIS CASE. I JUST YANT TO FINALLY DRAES HINES. I DISAGREE
WITH THE CHARACTERIZATION HOW THERE WAS ANOTHER OUT OF COURT IDENTIFICATION
WITH RESPECT DO HINES AND HOW HE SOMEHOW. JUSTICE PATTERSON:
HINES? A. YOU ARE TALK CAN A LITTLE QUICKLY. ROBIN KAY LORD:
BECAUSE I DON'T TWAN TO GET CUT OFF HAT MAT PAT WELL I CUT YOU OV THERE YOU GO
SFLOO I AM FINE WITH BEING CUT OFF I DON'T WANT THE CHIEF TO SAY OKAY MILLIONS
LORD USUAL DONE YOU EVER HAD YOUR FEW MINUTES I HAVE SEEN IN BEFORE.
CHIEF JUSTICE RABNER: YOU HAVE HAD YOUR 3 MRINS BUT KEEP GOING.
ROBIN KAY LORD: SORRY WIET WAY AS FAR AS BEING FAMILIAR BEFORE I GET TO HINES
HUNL RUMOR HAS IT THAT UNG LITIGANTS THAT HAVE APPEARED BEFORE THIS COURT HAVE
ROUTINELY REFERRED TO JUSTICE SOLOMON AS JUST CONTINUEAL BIN SO I MEAN.
JUSTICE SOLOMON: WHOE WHOE WHOE WHOE LITS' NOT DISCUSS THAT.
ROBIN KAY LORD: THE POINT IS THAT IS THE STORY THAT JUSTICEAL BIN HAS BEEN TELLING
WHEN HE GIVES HIS LECTURES. JUSTICE SOLOMON: I WILL TALK
TO HIM DIRECTLY ABOUT THAT. ROBIN KAY LORD: THE MORLG OF THE
STORY IS SIMPLY KNOWING SOMEBODY BEING PIM FAMILIAR WITH THEM DOES FRNT
MAM THEY CAN REEM FATS PAT THEY ARE BOTH UNRELIABLE. ROBIN KAY
LORD: THE CITE CALIFORNIA ANALYSIS TO THIS CASE IS THAT THERE WAS A GUY IN THIS
BAR THE CELL PHONE GUY AS I CALL HIM THAT LOOKED LIKE BRAND DONE WASHINGTON
ACCORDING TO A LOT OF THE WITNESSES I MEAN THE NOTE TOSS ARE IN XIB YOU CAN SEE
THEM I DID THE SIDE BY SIDE DID THOUGH DID LOOK FAMILIAR TO SOME EXTENT
AND TO THE POINT THAT THE DETECTIVE WHETHER IT LAM MADE A POINT AND THAT IS THE
MACE TAKE WE BELIEVE WE ARE HERE SIMPLY BEING FAMILIAR WITH SOMEBODY DOESN'T
END THE STOR THAN AND MAKE AN OTHERWISE IDENTIFICATION RELIABLE BUT AS FAR AS HIENLS
IS CONCERN HE IS IN 19 YOU CAN READ IT I WILL SURE YOU HAVE READ IT AND
HAVE MEMOS ON IT BUT FIRST OF ALL HE WAS EXTREMELY UNRELIABLE WITNESS HE WAS DRINKING
HE WAS SMOKING WE HAD HE IS A CONVICTED CRIMINAL HE WAS IN PRISON AT THE
TIME FIRST HE'S MISLED BY THE PROSECUTOR TO SAY HE SOUGHT 124509ING DID YOU SEAT
STROOTER YES I SOUGHT TROOPTER OBJECTION HE DIDN'T SEAT SHOOTING DID YOU
SEAT SLOOTING YES I SOUGHT SHOOTING BY THE TIME HE IS DONE HE AND EAST HE DIDN'T
SEAT SHOOTING HE CLAIMS HE THEN SOUGHT BEGINNING TO THE END THE PROBLEM IS HE
GETS THE FACTS WRONG HE SAID PETE SOUTHERN ANIMATE THUS TOOK HIM OUT ARM
PIE ARM THAT IS NOT THE FAK THAT IS HE NOT TWA HAPPENED HERE NOBODY TESTIFIED TO THAT I
DON'T EVEN THINK HE SOUGHT BEGINNING HE SAYS THE SHOOTING HANL OUTS SIDE
HE TESTIFIED THE SHOOTING HAPT OUD SITE IT DIDN'T HATCH OUTSIDE IT HAPPENED INSIDE
HE TAUSHGS FW A CADILLAC THE MRALT HE GAVE WAS MISSING DIGITS IT WASN'T
A REAL PLATE HE CLAIMS THE GUN IS IN A CAR IN A FRNT OF HIM IF FRONT OF THE SUV
YET HE #12078D IT IS ON HIS OWN BODY KAM HE HAD STOPPED BY THE POLICE AND HE
TALKS TO THEM ON BODY CANAL HE DOBS THAN TELL POLICE BY THE WAY THE CAR IN FRONT
OF MOO E THAT SUV THERE IS A GUN IN IT THAT THE MAN DROVE A WAY WITH AND THEY STOP
THE WOMAN STILL ON BODY CANAL THEY STOP THE PEOPLE IN THE SUV IN FRONLTD
AND WHO IS IN THERE TWO INNOCENT FEMALES. AND HE SAYS WELL ON 91 I DPOENT WANT
TO SAY I DO EVENT WHAT THAN THE TO BE INL MROO I INDICATED I DON'T KNOW
WHAT THAT IS ABOUT BUT MORE IMPORTANTLY THE STATE SUGGESTS THAT HE GAVE A STATEMENT
TO THE POLICE THAT THE GUY HAD GLASSES. TLALS' NOT IN THE RECORD THAT'S
KNOW WHERE IN THE RECORD IF YOU READ THE RECORD 9 TEE WHAT THE COAT IS QUOTING
HIS DIRECTION EXAMINATION WHAT HE IS TELLING THE NL IF THAT'S NOT ENOUGH
ON THE 911 CALL WHICH WE HAVE THE TRANSCRIPT OF HE DOES NOT MENTION GLASSES AT
ALL. SO I THINK THAT'S JUST HE WAS COMPLETELY UNRELIABLE. HE WASN'T
QUESTIONED THAT NIGHT. HE DIDN'T GET TO DO AN OUT OF COURT HENDER SON ARRAY. AND THE
PROSECUTOR THE TESTIMONY THE PROSECUTOR ACTUALLY WENT TO SOUTH WOODS AND
SPOKE TO HIM I DON'T 2340 WHAT FOET FOES THEY GAVE NICHL OR WHAT THEY SHOEDZ HIM
WHEN YOU HAVE HAD IN COURT IDENTIFICATION SO I THINK I DISMISSED HIM AT THE
BEGINNING THE INCEPTION OF TIME. CHIEF JUSTICE RABNER: YOU HAVE REACHED
THAT DRED FULL MOMENT DURING REBUTTAL SO IF YOU COULD QUICKLY BRING IT TO
A CLOSE. ROBIN KAY LORD: THANK YOU. IN CONCLUSION
I JUST WRANT TO EMPHASIZE I THINK THAT WE ALL ROIS THAT THIS COURT NEEDS TO
PROMULGATE SOME RULES AS FAR AS SHOWING PHOTOS PRETRIAL. AS IT APPLIES TO BRANDON
WASHINGTON, THESE WERE NOT OTHERWISE RELIEJ LIABLE IDENTIFICATIONS THERE IS
A SIGNIFICANT NOTICE ISSUE AND THERE IS A SIGNIFICANT RELY BILTD ISSUE AND WITH
THAT AND THOSE TWO I WOULD ASK THAT YOUR HONORS RESPECTFULLY REVERSE THE
CONVICTION THANK YOU SORRY TO IN SUL YOU. CHIEF JUSTICE RABNER: THANK YOU
TO ALL COUNSEL