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Kings County Criminal Bar Association examines changes to 90-year-old evidence law

October 23, 2017 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle
President Michael Cibella of the Kings County Criminal Bar Association welcomed Karen Newirth, senior staff attorney at the Innocence Project, to discuss recent changes to a 90-year-old rule of evidence law during the most recent meeting. Eagle photos by Rob Abruzzese
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The Kings County Criminal Bar Association (KCCBA) invited a member of the Innocence Project to its monthly meeting in Brooklyn Heights last Thursday to explain changes in the law that allow greater use of photo IDs at trial.

Gov. Andrew Cuomo announced the change that was effective on July 1, 2017 that modified 90 years of case law to allow greater use of photo IDs and laid out a protocol that officers have to follow when showing photos to witnesses.

“This is a seismic shift in identification law for the criminal justice system in New York that overrides nearly 90 years of case law,” said Michael Cibella, KCCBA president.

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Previously, photo IDs were only allowed on a case-by-case basis, with the judge having discretion over its use. Now IDs will be allowed in during every trial, and defense attorneys are allowed to cross-examine officers to determine if they followed proper protocol.

“They set out a procedure that has to be followed in order to be admissible,” Cibella said. “There is blind and blinded procedure that puts in the proper safety protocols that these will be reliable. The administrator won’t know which one the suspect is.”

Karen Newirth, a senior staff attorney at the Innocence Project, explained the changes and how they will affect both prosecutors and defense attorneys during a continuing legal education (CLE) seminar on Thursday titled “Everything You Need to Know About the New Identification Law and Admissibility of Photo IDs at Trial.”

In addition to explaining the changes to the law, Newirth explained the studies and evidence that led to the changes.

Many practicing attorneys were still skeptical on Thursday that the laws would have the intended effects on the criminal justice system.

“You no longer have to say, ‘This doesn’t look fair,’” Cibella said. “Now it’s whether it looks fair or not, there are protocols and they only followed two of the seven, for instance. It’s too soon to tell. It helps prosecutors right now because it allows them another way to get a photo in. But as we start to litigate this more, we may see that it helps defendants if officers aren’t following the procedures.”

This was the final regular KCCBA monthly meeting for this year. However, past KCCBA President Hon. Barry Kamins is hosting the all-day Professor Robert M. Pitler Annual Program at Brooklyn Law School on Oct. 28 from 9 a.m. to 4:30 p.m. It is worth seven credits and covers updates in criminal law, procedure, evidence and ethics.

KCCBA’s annual holiday party will take place at the Brooklyn Bar Association building on Dec. 14 at 5 p.m. More details on that event have yet to be announced.


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