Bronx Justice by Joseph Teller Page A

witnesses.
    But Jaywalker wasn’t satisfied with knowing that Jacob Pope wouldn’t be able to let a jury know that the victims had picked out Darren from photographs. Indeed, he knew the time might come when he himself might be forced to reveal that they had, so the jurors wouldn’t speculate that some other piece of information, something even more compelling, had led to Darren’s arrest. So Jaywalker wanted to explore, wanted to find out just how suggestive the procedures had been. For starters, had the victims been shown a whole bunch of photos or just Darren’s? If there’d been others, were they of the same approximate age, skin tone and hair length? Had the victims been separated when they picked out Darren’s photo, or had they been together? And had the police done anything to coach them, in either obvious or subtle ways? If Jaywalker could demonstrate that the methods used had been unduly suggestive, then the hearing judge might be compelled to conclude that, come trial, the victims would be pointing out Darren not on the basis of what they remembered from their attacks but from their recollections of the photographs, or at least some inseparable combination of the two. If that proved to be the case, the judge could bar such a witness from making an identification of Darren at trial.
    Or so the theory went.
    In practice, courts—operating at these hearings as both judge and jury—almost always come to the aid of prosecutors. Where conflicts arise between the officers’ versions of the facts and the defendants’ versions, the overwhelming majority of judges rule in favor of the police, so much so that few defense lawyers will even put their clients onthe stand to offer a competing narrative. Even in those cases where the facts undisputedly reveal police improprieties, the same judges rule that the witnesses’ trial identifications will be based upon the original crime-scene confrontation, untainted by any suggestiveness that may have corrupted the police-arranged identification procedure. Accordingly, they’ll permit the trial identifications, even in those cases. It’s the rare judge who will come right out and say that a witness’s opportunity to observe the perpetrator was so fleeting, and the later identification procedure so suggestive, that the only solution is to bar the witness altogether from pointing out the defendant at trial.
    That judicial bias aside, Jaywalker already knew that in this case, the victims’ encounters with their attacker had in fact been quite substantial. He knew from John McCarthy’s interviews that each of them had gotten a good look at her rapist or would-be rapist. Each had not only had the opportunity to see him “up close and personal” for an extended period of time—fifteen to twenty minutes—but had also heard him speak at some length, as well. Nothing fleeting about that.
    Still, Jaywalker wanted the hearing. He needed to know just how suggestive the photo identification procedures had been, in order to be able to make an informed decision as to whether or not he wanted to go into the matter in front of the jury. The same rule that barred the prosecution from eliciting testimony about the photo identifications left the defense free to do so if it chose, albeit at its peril.
    Even beyond that, Jaywalker wanted a crack at the witnesses before trial, a free look. He wanted the opportunity to size them up, to test their certainty or tentativeness. Hewanted to be able to gauge their reactions to different types of cross-examination, and to probe their accounts in more detail than McCarthy had been able to. Best yet, a court stenographer would be taking down every word that came out of their mouths, so that if they varied what they said later on at the trial, he would have their hearing testimony to confront them with. Added to what they’d initially reported to the police and later told McCarthy,