What is a Rodriguez Hearing?


Courts have routinely used the term “Rodriguez hearing” to refer to the inquiry conducted when the People invoke the confirmation-familiarity exception to CPL § 710.30, whether the People do so to avoid preclusion of the identification for lack of statutory notice or to avoid a Wade hearing. One lower court, however, viewed a “preclusion hearing,” held to determine whether the lack of notice was justified in the first place, as technically distinct from a “Rodriguez hearing”: In the former situation, the People’s failure of proof on the issue of witness-familiarity results in total preclusion of the identification, whereas, in the latter situation, it simply leads to a full-blown Wade hearing. People v. Whiting, 5 Misc.3d 802, 806–809 (Crim. Ct., Queens Co. 2004).1 New York Identification Law § 1.02

With most Wade hearings, the prosecutor presents police witnesses to sustain the burden of proof that the I.D. procedure was not suggestive. This may not suffice, though, with a Rodriguez hearing. The focus at such a hearing is the prior knowledge of and relationship between the I.D. witness and the defendant, rather than suggestiveness of any procedure. Such knowledge is usually only within the ken of the identifier, rather than the police, whose knowledge on that issue is completely hearsay at best. See People v. Bernhard, 188 A.D.2d 348, 591 N.Y.S.2d 165 (1st Dep't 1992).§ 9:280. Procedural considerations—The Wade hearing: admissibility of identification—Pre- Wade Rodriguez hearing on identifications, Handling a Criminal Case in New York § 9:280

(People v Rodriguez, 79 NY2d 445 [1992])

See Criminal Procedure Law  710.30 Motion to suppress evidence; notice to defendant of intention to offer evidence

Court Public Access Law Libraries' materials include extensive discussion of Rodriguez hearings.

  • Last Updated Nov 02, 2023
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