14 May Photo Arrays – Does everyone need to look alike? The story of PAYIS
A man who has payis (side curls of hair worn by ultra orthodox Jews….see funny picture above) was arrested for burglary. A photo array was shown to a witness of 5 men who look similar to the defendant but do NOT have payis and the defendant was picked out right away. The defense argued that this was an unfair photo array.
A judge in Nassau County has upheld a police photo array where the defendant in a burglary case is an Orthodox Jew and was the only individual in the photographic lineup with side curls. Although defense attorney Michael Sean Weinstock of Great Neck argued that the array was unduly suggestive, Acting Supreme Court Justice David Ayres said it was not obvious from the photo that the defendant wore payis. Ayres declined to suppress the photographic identification of Robert Decker, who is charged with a burglary in Oceanside.
A non-victim witness picked Decker out of an array that included six images of white males with similar features, according to a transcript of an April 15 hearing in Mineola.
At the hearing, Weinstock and Assistant Nassau County District Attorney Lauren Doddato argued over the admissibility of the identification. Weinstock contended the identification procedure was flawed since his client was the only one with side curls. Doddato countered that the array included subjects with similar features and did not unfairly single out Decker.
Ayres said that in examining the six photos shown to the witness “it is not apparent…that the defendant has anything more than what appears to be long hair or possibly a ponytail. There is nothing in this photograph that I can see that screams out payis or identifies him in some way that is not similar to the others.”
Did the Judge rule correctly? Do other individuals in the photo array need to have similar appearances? I am certain that if the defendant wore eyeglasses and the array had 5 individuals without eyeglasses and one with that the Judge would have ruled differently. Why then if the defendant has payis does the Judge rule that the photo array is fair? How hard would it be to find other individuals with payis as “fillers”? I remember one case I had in Boro Park defending a Hasid and had to put him in a line up. The detectives walked into a Yeshiva in Boro Park found 5 other Hasidim dressed exactly like my client all with long beards and conducted the line up. The line up was so good that I could not even pick out my client after spending several hours with him. It would appear that a similar thing could have been done here and if it was not the identification should have been suppressed.