NY State Assembly Bill 2013-A2878B

Assembly Bill A2878B

2013-2014 Legislative Session

Establishes identification procedures that shall be used for eyewitnesses including live lineups and photo lineups

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Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to codes
Jun 18, 2013	print number 2878b
Jun 18, 2013	amend (t) and recommit to codes
Jun 10, 2013	print number 2878a
Jun 10, 2013	amend and recommit to codes
Jan 18, 2013	referred to codes

Bill Amendments

Original

B (Active)

2013-A2878 - Details

Current Committee:: Assembly Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, Title D Art 80 §§80.10 - 80.40, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: A11052
2011-2012: A5317

2013-A2878 - Summary

Establishes identification procedures that shall be used for eyewitnesses including live lineups and photo lineups.

2013-A2878 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2878

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 18, 2013
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Codes

AN ACT to amend the criminal procedure law, in  relation  to  eyewitness
  identification  procedures;  and  to  repeal section 60.30 of such law
  relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  criminal  procedure  law  is amended by adding a new
section 60.17 to read as follows:
S 60.17 RULES OF EVIDENCE; EXPERT TESTIMONY  IN  CERTAIN  IDENTIFICATION
          CASES.
  IN ANY CRIMINAL PROCEEDING IN WHICH EYEWITNESS IDENTIFICATION TESTIMO-
NY  IS  INTRODUCED,  OR IN OTHER CASES WHERE THE INTERESTS OF JUSTICE SO
REQUIRE, THE COURT MAY ADMIT EXPERT TESTIMONY REGARDING RELEVANT ASPECTS
OF IDENTIFICATION PROCEDURES, INCLUDING BUT NOT LIMITED TO FACTORS  THAT
AFFECT THE RELIABILITY AND ACCURACY OF EYEWITNESS IDENTIFICATION.
  S  2. Title D of the criminal procedure law is amended by adding a new
article 80 to read as follows:
                               ARTICLE 80
                        IDENTIFICATION PROCEDURES
SECTION 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
        80.20 IDENTIFICATION PROCEDURES; GENERALLY.
        80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
        80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
S 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
  AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE  FOLLOWING
MEANINGS:
  1. "ADMINISTRATOR" MEANS THE PERSON CONDUCTING THE PHOTO OR LIVE LINE-
UP.
  2.  "SUSPECT"  MEANS  THE PERSON BELIEVED BY LAW ENFORCEMENT TO BE THE
POSSIBLE PERPETRATOR OF THE CRIME.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01679-01-3

A. 2878                             2

  3. "BLIND" MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY  OF  THE
SUSPECT.
  4.  "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS, BUT
DOES NOT KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE  EYEWITNESS  AT
ANY GIVEN TIME.
  5.  "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR NEAR
THE SCENE OF AN OFFENSE OR UPON SOME  OTHER  OCCASION  RELEVANT  TO  THE
CASE.
  6.  "FILLER"  MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO IS
NOT SUSPECTED OF AN OFFENSE AND IS INCLUDED IN AN IDENTIFICATION  PROCE-
DURE.
  7.  "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP, A PHOTO LINEUP, OR
A SHOWUP.
  8. "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH A GROUP OF
PERSONS, INCLUDING THE SUSPECTED PERPETRATOR OF  AN  OFFENSE  AND  OTHER
PERSONS  NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS FOR
THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
AS THE PERPETRATOR.
  9. "PHOTO LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN  ARRAY
OF  PHOTOGRAPHS,  INCLUDING A PHOTOGRAPH OF THE SUSPECTED PERPETRATOR OF
AN OFFENSE AND ADDITIONAL PHOTOGRAPHS OF OTHER PERSONS NOT SUSPECTED  OF
THE  OFFENSE,  IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD COPY FORM OR
VIA COMPUTER FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDEN-
TIFIES THE SUSPECT AS THE PERPETRATOR.
  10. "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN  EYEWITNESS
IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
ER THE EYEWITNESS IDENTIFIES THIS INDIVIDUAL AS THE PERPETRATOR.
S 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
  1.  IF IDENTIFICATION PROCEDURES (A) HAVE BEEN CONDUCTED IN ACCORDANCE
WITH THIS SECTION AND UNDER CIRCUMSTANCES CONSISTENT WITH SUCH RIGHTS AS
AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS STATE OR  OF
THE  UNITED  STATES;  AND (B) ARE PROPERLY DOCUMENTED IN ACCORDANCE WITH
PARAGRAPHS (T), (U) AND (V) OF SUBDIVISION TWO OF THIS SECTION, TESTIMO-
NY MAY BE GIVEN BY A WITNESS THAT HE OR SHE OBSERVED A PERSON OR  PHOTO-
GRAPH  OF  A PERSON ON AN OCCASION PRIOR TO HIS OR HER TESTIMONY WHOM HE
OR SHE RECOGNIZES AS THE SAME PERSON WHOM HE OR SHE HAD OBSERVED ON  THE
FIRST OR INCRIMINATING OCCASION.
  2.  ANY  CRIMINAL  JUSTICE ENTITY CONDUCTING EYEWITNESS IDENTIFICATION
PROCEDURES SHALL ADOPT SPECIFIC WRITTEN PROCEDURES FOR CONDUCTING  PHOTO
AND LIVE LINEUPS THAT COMPLY WITH THE FOLLOWING REQUIREMENTS:
  (A)  PRIOR  TO A PHOTO OR LIVE LINEUP, LAW ENFORCEMENT SHALL RECORD AS
COMPLETE A DESCRIPTION AS POSSIBLE OF THE PERPETRATOR  PROVIDED  BY  THE
EYEWITNESS,  IN  THE  EYEWITNESS'S  OWN WORDS. THIS STATEMENT SHALL ALSO
INCLUDE INFORMATION REGARDING THE WITNESS'S DEGREE OF  ATTENTION  DURING
THE  INCIDENT  AND THE WITNESS'S OPPORTUNITY TO VIEW THE PERPETRATOR, AS
WELL AS THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERPETRA-
TOR, INCLUDING LOCATION, TIME, DISTANCE, OBSTRUCTIONS, LIGHTING, WEATHER
CONDITIONS AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO  ALCOHOL,
DRUGS,  STRESS  AND  VISUAL/AUDITORY  DISABILITIES.  THE EYEWITNESS ALSO
SHALL BE ASKED IF HE OR SHE NEEDS GLASSES OR CONTACT LENSES AND  WHETHER
HE OR SHE WAS WEARING THEM AT THE TIME OF THE OFFENSE. THE ADMINISTRATOR
SHALL  NOTE WHETHER THE EYEWITNESS WAS WEARING GLASSES OR CONTACT LENSES
AT THE TIME OF THE IDENTIFICATION PROCEDURES;
  (B) UNLESS IMPRACTICABLE, A BLIND ADMINISTRATOR SHALL CONDUCT THE LIVE
OR PHOTO LINEUP;

A. 2878                             3

  (C) WHEN IT IS IMPRACTICABLE FOR A BLIND ADMINISTRATOR TO CONDUCT  THE
EYEWITNESS  IDENTIFICATION  PROCEDURE,  THE  INVESTIGATOR SHALL STATE IN
WRITING THE REASON THEREFOR, AND SHALL CONDUCT THE LINEUP BLINDED;
  (D)  THE  EYEWITNESS  SHALL  BE INSTRUCTED, WITHOUT OTHER EYEWITNESSES
PRESENT, PRIOR TO ANY LIVE OR PHOTO LINEUP THAT:
  (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
TIFICATION PROCEDURE;
  (II) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;
  (III)  THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN  IDENTIFICATION
IS MADE;
  (V)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
TIFICATION; AND
  (VI)  THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
SPEAK WITH THE MEDIA;
  (E)  UNLESS  IMPRACTICABLE,  THE  PHOTOGRAPH  OF THE SUSPECT USED IN A
PHOTO LINEUP SHALL BE CONTEMPORARY AND SHALL RESEMBLE HIS OR HER APPEAR-
ANCE AT THE TIME OF THE OFFENSE. WHEN IT IS IMPRACTICABLE, THE  INVESTI-
GATOR SHALL STATE IN WRITING THE REASON THEREFOR;
  (F) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
GRAPHS  THEMSELVES  OR  THE  BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS STAND OUT;
  (G) A PHOTO OR LIVE LINEUP SHALL  BE  COMPOSED  SO  THAT  THE  FILLERS
GENERALLY  RESEMBLE  THE  EYEWITNESS'S  DESCRIPTION  OF THE PERPETRATOR,
WHILE ENSURING THAT THE SUSPECT DOES NOT STAND OUT FROM THE FILLERS;
  (H) IN A PHOTO OR LIVE LINEUP, FILLERS  SHALL  POSSESS  THE  FOLLOWING
CHARACTERISTICS:
  (I)  ALL  FILLERS SELECTED SHALL RESEMBLE THE EYEWITNESS'S DESCRIPTION
OF THE PERPETRATOR IN SIGNIFICANT FEATURES INCLUDING, BUT NOT LIMITED TO
FACE, WEIGHT, BUILD AND SKIN TONE, AND INCLUDING ANY UNIQUE  OR  UNUSUAL
FEATURES  TO THE EXTENT POSSIBLE INCLUDING, BUT NOT LIMITED TO ANY SCARS
OR  TATTOOS;  IF  THE  SUSPECT  DOES  NOT  RESEMBLE   THE   EYEWITNESS'S
DESCRIPTION  OF  THE  PERPETRATOR  IN  SIGNIFICANT FEATURES, THE FILLERS
SELECTED SHALL RESEMBLE THE SUSPECT IN SIGNIFICANT FEATURES;
  (II) AT LEAST FIVE FILLERS SHALL BE INCLUDED IN  A  PHOTO  LINEUP,  IN
ADDITION TO THE SUSPECT;
  (III)  AT  LEAST  FOUR  FILLERS SHALL BE INCLUDED IN A LIVE LINEUP, IN
ADDITION TO THE SUSPECT; AND
  (IV) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A PHOTO  LINEUP  OR  LIVE
LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
OF  INVOLVEMENT  IN  THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
ANY PRIOR LINEUPS;
  (I) IF THERE ARE MULTIPLE EYEWITNESSES:
  (I) EACH EYEWITNESS SHALL VIEW PHOTO OR LIVE LINEUPS SEPARATELY;
  (II) THE SUSPECT SHALL BE PLACED IN A DIFFERENT POSITION IN  THE  LIVE
LINEUP AND/OR PHOTO LINEUP FOR EACH EYEWITNESS; AND
  (III) THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH EACH
OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED;
  (J)  IN  AN  IDENTIFICATION  PROCEDURE,  NO  WRITINGS  OR  INFORMATION
CONCERNING THE INSTANT OR ANY PREVIOUS ARREST, INDICTMENT OR  CONVICTION
OF THE SUSPECT SHALL BE VISIBLE OR MADE KNOWN TO THE EYEWITNESS;

A. 2878                             4

  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY  ALL  LINEUP  PARTIC-
IPANTS;
  (L)  IN  A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF VIEW OF
THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE;
  (M) WHEN THERE ARE MULTIPLE SUSPECTS,  EACH  IDENTIFICATION  PROCEDURE
SHALL INCLUDE ONLY ONE SUSPECT;
  (N)  NOTHING  SHALL  BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
POSITION IN THE PHOTO OR LIVE LINEUP;
  (O) NOTHING SHALL BE SAID TO THE EYEWITNESS THAT MIGHT  INFLUENCE  THE
EYEWITNESS'S IDENTIFICATION OF ANY PARTICULAR LINEUP MEMBER;
  (P) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
CATION PROCEDURE IS THE PERPETRATOR;
  (Q) IF THE EYEWITNESS IDENTIFIES A  PERSON  AS  THE  PERPETRATOR,  THE
EYEWITNESS  SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON
BEFORE THE ADMINISTRATOR OBTAINS THE EYEWITNESS'S  CONFIDENCE  STATEMENT
ABOUT THE SELECTION;
  (R)  A  RECORD  OF  THE  IDENTIFICATION  PROCEDURE  SHALL BE MADE THAT
INCLUDES ALL  IDENTIFICATION  AND  NON-IDENTIFICATION  RESULTS  OBTAINED
DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES;
  (S) EFFORTS SHALL BE MADE TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF
A SHOWUP. IN ADDITION:
  (I)  SHOWUPS  SHALL  ONLY  BE PERFORMED WITHIN A REASONABLE TIME OF AN
OFFENSE, USING A LIVE SUSPECT AND IN EXIGENT CIRCUMSTANCES THAT  REQUIRE
THE IMMEDIATE DISPLAY OF A SUSPECT TO AN EYEWITNESS;
  (II) IN THE EVENT OF THE ADMINISTRATION OF A SHOWUP PROCEDURE:
  (A)  A  FULL  AND  DETAILED  DESCRIPTION  OF  THE PERPETRATOR SHALL BE
PROVIDED BY THE EYEWITNESS BEFORE THE EYEWITNESS OBSERVES  THE  SUSPECT.
THIS  STATEMENT  SHALL  ALSO INCLUDE INFORMATION REGARDING THE WITNESS'S
DEGREE OF ATTENTION DURING THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO
VIEW THE PERPETRATOR, AS WELL AS THE CONDITIONS UNDER WHICH THE  EYEWIT-
NESS  OBSERVED  THE  PERPETRATOR  INCLUDING  LOCATION,  TIME,  DISTANCE,
OBSTRUCTIONS,  LIGHTING,  WEATHER  CONDITIONS  AND  OTHER   IMPAIRMENTS,
INCLUDING  BUT NOT LIMITED TO ALCOHOL, DRUGS, STRESS AND VISUAL/AUDITORY
DISABILITIES. THE EYEWITNESS SHALL ALSO BE ASKED  IF  HE  OR  SHE  NEEDS
GLASSES  OR CONTACT LENSES AND WHETHER HE OR SHE WAS WEARING THEM AT THE
TIME OF THE OFFENSE. THE ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS
WAS WEARING GLASSES OR CONTACT LENSES AT THE TIME OF THE  IDENTIFICATION
PROCEDURE;
  (B) THE EYEWITNESS SHALL BE TRANSPORTED TO A NEUTRAL, NON-LAW ENFORCE-
MENT  LOCATION WHERE THE SUSPECT IS BEING DETAINED FOR THE PURPOSES OF A
SHOWUP PROCEDURE;
  (C) EYEWITNESSES SHALL BE PROVIDED  WITH  INSTRUCTIONS  PRIOR  TO  THE
SHOWUP, INCLUDING THAT:
  (1)  THE PERPETRATOR MAY OR MAY NOT BE THE PERSON THAT IS PRESENTED TO
THE EYEWITNESS;
  (2) THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO  MAKE  AN  IDENTIFICA-
TION;
  (3)  THE  INVESTIGATION WILL CONTINUE WHETHER OR NOT AN IDENTIFICATION
IS MADE;
  (4) THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS  TO
STATE,  IN  HIS  OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS OF ANY IDEN-
TIFICATION; AND

A. 2878                             5

  (5) THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION  PROCEDURE  OR
ITS  RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD NOT
SPEAK WITH THE MEDIA;
  (D)  MEASURES SHALL BE TAKEN BY INVESTIGATORS AT THE SHOWUP, INCLUDING
THE ADMINISTRATOR OF THE  SHOWUP,  TO  REDUCE  POTENTIALLY  DAMAGING  OR
PREJUDICIAL INFERENCES THAT MAY BE DRAWN BY THE EYEWITNESS, INCLUDING:
  (1)  REFRAINING  FROM  SUGGESTING,  THROUGH  STATEMENTS  OR NON-VERBAL
CONDUCT, THAT THE SUSPECT IS OR MAY BE THE PERPETRATOR OF THE CRIME;
  (2) REMOVING THE SUSPECT FROM A SQUAD CAR; AND
  (3) WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE SUSPECT;
  (E) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A  TIME
SHALL  PARTICIPATE IN THE SHOWUP PROCEDURE. ONLY ONE OF THE EYEWITNESSES
SHALL BE PRESENT AT THE LOCATION OF THE SHOWUP PROCEDURE. IF A  POSITIVE
IDENTIFICATION  IS  MADE, AND AN ARREST IS JUSTIFIED, ADDITIONAL EYEWIT-
NESSES SHALL BE SHOWN LIVE OR PHOTO LINEUPS;
  (F) IF THERE ARE MULTIPLE SUSPECTS, THESE SUSPECTS SHALL BE  SEPARATED
AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES; AND
  (G) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
CATION PROCEDURE IS THE PERPETRATOR.  IF  THE  EYEWITNESS  IDENTIFIES  A
PERSON  AS  THE  PERPETRATOR,  THE  EYEWITNESS SHALL NOT BE PROVIDED ANY
INFORMATION CONCERNING SUCH PERSON BEFORE THE ADMINISTRATOR OBTAINS  THE
EYEWITNESS'S CONFIDENCE STATEMENT ABOUT THE SELECTION;
  (T)  UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
  (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED  DURING
THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
EYEWITNESSES' CONFIDENCE STATEMENTS;
  (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
  (III) THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
  (IV)  IN A PHOTO OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATIONS OF ANY
FILLERS; AND
  (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF  THE  LINEUP  MEMBERS  AND
OTHER  RELEVANT  IDENTIFYING  INFORMATION, AND THE SOURCES OF ALL PHOTO-
GRAPHS OR PERSONS USED IN THE LINEUP;
  (U) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE  IS  IMPRACTICA-
BLE,  THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT THE REASON THERE-
FOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE SHALL  BE  MADE
WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDIVISION.
THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTOGRAPHS USED IN
A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS USED IN A LIVE
LINEUP OR SHOWUP; AND
  (V)  IF  BOTH A VIDEO AND AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
ARE IMPRACTICABLE, THE OFFICER CONDUCTING THE LINEUP SHALL  DOCUMENT  IN
WRITING THE REASON THEREFOR, AND A WRITTEN RECORD OF THE LINEUP SHALL BE
MADE  WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDI-
VISION. THE WRITTEN RECORD SHALL BE SUPPLEMENTED BY ALL  OF  THE  PHOTO-
GRAPHS USED IN A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS
USED IN A LIVE LINEUP OR SHOWUP.
S 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
  FOR  ANY  PHOTO  OR LIVE LINEUP, OR SHOWUP PROCEDURE THAT WAS ADMINIS-
TERED AFTER THE DATE UPON WHICH THIS ARTICLE TOOK EFFECT:
  1. IF  LAW  ENFORCEMENT  OFFICIALS  OR  PROSECUTING  AGENCIES  DO  NOT
SUBSTANTIALLY  COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE DEFENDANT

A. 2878                             6

MAY MOVE TO SUPPRESS  EYEWITNESS  IDENTIFICATION  EVIDENCE  PURSUANT  TO
ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.
  2.   COURTS SHALL CONSIDER EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF
THE PROVISIONS OF  SECTION  80.20  OF  THIS  ARTICLE  WHEN  ADJUDICATING
MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE.
  3.  IN THE EVENT THE COURT MAKES A FINDING OF FACT TO SUPPRESS EYEWIT-
NESS IDENTIFICATION EVIDENCE DUE TO A  SUBSTANTIAL  NON-COMPLIANCE  WITH
THE  PROVISIONS  OF THIS ARTICLE, ALL EVIDENCE OF EYEWITNESS IDENTIFICA-
TION SHALL BE EXCLUDED  IN  THE  CRIMINAL  ACTION  PENDING  AGAINST  THE
DEFENDANT.
  4.  IN THE EVENT THE COURT DOES NOT SUPPRESS EYEWITNESS IDENTIFICATION
EVIDENCE BUT MAKES A FINDING OF FACT PURSUANT TO SUBDIVISIONS  FOUR  AND
SIX  OF SECTION 710.60 OF THIS CHAPTER THAT LAW ENFORCEMENT OFFICIALS OR
PROSECUTING AGENCIES FAILED TO SUBSTANTIALLY COMPLY WITH THE  PROVISIONS
OF THIS ARTICLE, THE COURT SHALL INSTRUCT THE JURY THAT EYEWITNESS IDEN-
TIFICATION  PROCEDURE  REQUIREMENTS  AS  SET  FORTH IN THIS CHAPTER WERE
DESIGNED TO REDUCE THE  RISK  OF  MISIDENTIFICATION  AND  THE  JURY  MAY
CONSIDER  CREDIBLE  EVIDENCE  OF NON-COMPLIANCE WHEN ASSESSING THE RELI-
ABILITY OF EYEWITNESS IDENTIFICATIONS.
  5. IN THE EVENT THE COURT DOES NOT SUPPRESS EYEWITNESS  IDENTIFICATION
EVIDENCE  BUT  MAKES A FINDING OF FACT PURSUANT TO SUBDIVISIONS FOUR AND
SIX OF SECTION  710.60  OF  THIS  CHAPTER  AND  FINDS  THAT  SUBSTANTIAL
NON-COMPLIANCE  WITH  THE PROVISIONS OF THIS ARTICLE HAVE UNDERMINED THE
COURT'S CONFIDENCE IN THE RELIABILITY OF THE EYEWITNESS  IDENTIFICATION,
THE COURT SHALL ALSO INSTRUCT THE JURY THAT IT SHOULD VIEW THE IDENTIFI-
CATION EVIDENCE WITH DISTRUST.
S 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
  THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CREATE, ADMINISTER AND
CONDUCT TRAINING PROGRAMS FOR PROFESSIONALS INVOLVED IN LAW ENFORCEMENT,
INCLUDING  BUT NOT LIMITED TO POLICE AND OTHER LAW ENFORCEMENT OFFICIALS
AND RECRUITS, PROSECUTORS, JUDGES AND  DEFENSE  COUNSEL,  REGARDING  THE
METHODS,  TECHNICAL  ASPECTS AND SCIENTIFIC FINDINGS REGARDING THE BASIS
OF THE EYEWITNESS IDENTIFICATION PRACTICES AND PROCEDURES REFERENCED  IN
THIS ARTICLE.
  S 3. Section 60.30 of the criminal procedure law is REPEALED.
  S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law, and shall apply to all identification proce-
dures that take place on or after such date.

2013-A2878A - Details

Current Committee:: Assembly Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, Title D Art 80 §§80.10 - 80.40, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: A11052
2011-2012: A5317

2013-A2878A - Summary

Establishes identification procedures that shall be used for eyewitnesses including live lineups and photo lineups.

2013-A2878A - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2878--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 18, 2013
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Codes --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to  amend the criminal procedure law, in relation to eyewitness
  identification procedures; and to repeal section  60.30  of  such  law
  relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The criminal procedure law  is  amended  by  adding  a  new
section 60.17 to read as follows:
S 60.17 RULES  OF  EVIDENCE;  EXPERT TESTIMONY IN CERTAIN IDENTIFICATION
          CASES.
  IN ANY CRIMINAL PROCEEDING IN WHICH EYEWITNESS IDENTIFICATION TESTIMO-
NY IS INTRODUCED, OR IN OTHER CASES WHERE THE INTERESTS  OF  JUSTICE  SO
REQUIRE, THE COURT MAY ADMIT EXPERT TESTIMONY REGARDING RELEVANT ASPECTS
OF  IDENTIFICATION PROCEDURES, INCLUDING BUT NOT LIMITED TO FACTORS THAT
AFFECT THE RELIABILITY AND ACCURACY OF EYEWITNESS IDENTIFICATION.
  S 2. Title D of the criminal procedure law is amended by adding a  new
article 80 to read as follows:
                               ARTICLE 80
                        IDENTIFICATION PROCEDURES
SECTION 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
        80.20 IDENTIFICATION PROCEDURES; GENERALLY.
        80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
        80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
S 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
  AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS:
  1. "ADMINISTRATOR" MEANS THE PERSON CONDUCTING THE PHOTO OR LIVE LINE-
UP.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01679-02-3

A. 2878--A                          2

  2. "SUSPECT" MEANS THE PERSON BELIEVED BY LAW ENFORCEMENT  TO  BE  THE
POSSIBLE PERPETRATOR OF THE CRIME.
  3.  "BLIND"  MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY OF THE
SUSPECT.
  4. "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS,  BUT
DOES  NOT  KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE EYEWITNESS AT
ANY GIVEN TIME.
  5. "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR  NEAR
THE  SCENE  OF  AN  OFFENSE  OR UPON SOME OTHER OCCASION RELEVANT TO THE
CASE.
  6. "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON  WHO  IS
NOT  SUSPECTED OF AN OFFENSE AND IS INCLUDED IN AN IDENTIFICATION PROCE-
DURE.
  7. "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP, A PHOTO LINEUP,  OR
A SHOWUP.
  8. "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH A GROUP OF
PERSONS,  INCLUDING  THE  SUSPECTED  PERPETRATOR OF AN OFFENSE AND OTHER
PERSONS NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS  FOR
THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
AS THE PERPETRATOR.
  9.  "PHOTO LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN ARRAY
OF PHOTOGRAPHS, INCLUDING A PHOTOGRAPH OF THE SUSPECTED  PERPETRATOR  OF
AN  OFFENSE AND ADDITIONAL PHOTOGRAPHS OF OTHER PERSONS NOT SUSPECTED OF
THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD COPY  FORM  OR
VIA COMPUTER FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDEN-
TIFIES THE SUSPECT AS THE PERPETRATOR.
  10.  "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN EYEWITNESS
IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
ER THE EYEWITNESS IDENTIFIES THIS INDIVIDUAL AS THE PERPETRATOR.
S 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
  1. IF IDENTIFICATION PROCEDURES (A) HAVE BEEN CONDUCTED IN  ACCORDANCE
WITH THIS SECTION AND UNDER CIRCUMSTANCES CONSISTENT WITH SUCH RIGHTS AS
AN  ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS STATE OR OF
THE UNITED STATES; AND (B) ARE PROPERLY DOCUMENTED  IN  ACCORDANCE  WITH
PARAGRAPHS (T), (U) AND (V) OF SUBDIVISION TWO OF THIS SECTION, TESTIMO-
NY  MAY BE GIVEN BY A WITNESS THAT HE OR SHE OBSERVED A PERSON OR PHOTO-
GRAPH OF A PERSON ON AN OCCASION PRIOR TO HIS OR HER TESTIMONY  WHOM  HE
OR  SHE RECOGNIZES AS THE SAME PERSON WHOM HE OR SHE HAD OBSERVED ON THE
FIRST OR INCRIMINATING OCCASION.
  2. ANY CRIMINAL JUSTICE ENTITY  CONDUCTING  EYEWITNESS  IDENTIFICATION
PROCEDURES  SHALL ADOPT SPECIFIC WRITTEN PROCEDURES FOR CONDUCTING PHOTO
AND LIVE LINEUPS THAT COMPLY WITH THE FOLLOWING REQUIREMENTS:
  (A) PRIOR TO A PHOTO OR LIVE LINEUP, LAW ENFORCEMENT SHALL  RECORD  AS
COMPLETE  A  DESCRIPTION  AS POSSIBLE OF THE PERPETRATOR PROVIDED BY THE
EYEWITNESS, IN THE EYEWITNESS'S OWN WORDS.  THIS  STATEMENT  SHALL  ALSO
INCLUDE  INFORMATION  REGARDING THE WITNESS'S DEGREE OF ATTENTION DURING
THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO VIEW THE  PERPETRATOR,  AS
WELL AS THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERPETRA-
TOR, INCLUDING LOCATION, TIME, DISTANCE, OBSTRUCTIONS, LIGHTING, WEATHER
CONDITIONS  AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO ALCOHOL,
DRUGS, STRESS AND  VISUAL/AUDITORY  DISABILITIES.  THE  EYEWITNESS  ALSO
SHALL  BE ASKED IF HE OR SHE NEEDS GLASSES OR CONTACT LENSES AND WHETHER
HE OR SHE WAS WEARING THEM AT THE TIME OF THE OFFENSE. THE ADMINISTRATOR
SHALL NOTE WHETHER THE EYEWITNESS WAS WEARING GLASSES OR CONTACT  LENSES
AT THE TIME OF THE IDENTIFICATION PROCEDURES;

A. 2878--A                          3

  (B) UNLESS IMPRACTICABLE, A BLIND ADMINISTRATOR SHALL CONDUCT THE LIVE
OR PHOTO LINEUP;
  (C)  WHEN IT IS IMPRACTICABLE FOR A BLIND ADMINISTRATOR TO CONDUCT THE
EYEWITNESS IDENTIFICATION PROCEDURE, THE  INVESTIGATOR  SHALL  STATE  IN
WRITING THE REASON THEREFOR, AND SHALL CONDUCT THE LINEUP BLINDED;
  (D)  THE  EYEWITNESS  SHALL  BE INSTRUCTED, WITHOUT OTHER EYEWITNESSES
PRESENT, PRIOR TO ANY LIVE OR PHOTO LINEUP THAT:
  (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
TIFICATION PROCEDURE;
  (II) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;
  (III)  THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN  IDENTIFICATION
IS MADE;
  (V)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
TIFICATION; AND
  (VI)  THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
SPEAK WITH THE MEDIA;
  (E)  UNLESS  IMPRACTICABLE,  THE  PHOTOGRAPH  OF THE SUSPECT USED IN A
PHOTO LINEUP SHALL BE CONTEMPORARY AND SHALL RESEMBLE HIS OR HER APPEAR-
ANCE AT THE TIME OF THE OFFENSE. WHEN IT IS IMPRACTICABLE, THE  INVESTI-
GATOR SHALL STATE IN WRITING THE REASON THEREFOR;
  (F) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
GRAPHS  THEMSELVES  OR  THE  BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS STAND OUT;
  (G) A PHOTO OR LIVE LINEUP SHALL  BE  COMPOSED  SO  THAT  THE  FILLERS
GENERALLY  RESEMBLE  THE  EYEWITNESS'S  DESCRIPTION  OF THE PERPETRATOR,
WHILE ENSURING THAT THE SUSPECT DOES NOT STAND OUT FROM THE FILLERS;
  (H) IN A PHOTO OR LIVE LINEUP, FILLERS  SHALL  POSSESS  THE  FOLLOWING
CHARACTERISTICS:
  (I)  ALL  FILLERS SELECTED SHALL RESEMBLE THE EYEWITNESS'S DESCRIPTION
OF THE PERPETRATOR IN SIGNIFICANT FEATURES INCLUDING, BUT NOT LIMITED TO
FACE, WEIGHT, BUILD AND SKIN TONE, AND INCLUDING ANY UNIQUE  OR  UNUSUAL
FEATURES  TO THE EXTENT POSSIBLE INCLUDING, BUT NOT LIMITED TO ANY SCARS
OR  TATTOOS;  IF  THE  SUSPECT  DOES  NOT  RESEMBLE   THE   EYEWITNESS'S
DESCRIPTION  OF  THE  PERPETRATOR  IN  SIGNIFICANT FEATURES, THE FILLERS
SELECTED SHALL RESEMBLE THE SUSPECT IN SIGNIFICANT FEATURES;
  (II) AT LEAST FIVE FILLERS SHALL BE INCLUDED IN  A  PHOTO  LINEUP,  IN
ADDITION TO THE SUSPECT;
  (III)  AT  LEAST  FOUR  FILLERS SHALL BE INCLUDED IN A LIVE LINEUP, IN
ADDITION TO THE SUSPECT; AND
  (IV) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A PHOTO  LINEUP  OR  LIVE
LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
OF  INVOLVEMENT  IN  THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
ANY PRIOR LINEUPS;
  (I) IF THERE ARE MULTIPLE EYEWITNESSES:
  (I) EACH EYEWITNESS SHALL VIEW PHOTO OR LIVE LINEUPS SEPARATELY;
  (II) THE SUSPECT SHALL BE PLACED IN A DIFFERENT POSITION IN  THE  LIVE
LINEUP AND/OR PHOTO LINEUP FOR EACH EYEWITNESS; AND
  (III) THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH EACH
OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED;

A. 2878--A                          4

  (J)  IN  AN  IDENTIFICATION  PROCEDURE,  NO  WRITINGS  OR  INFORMATION
CONCERNING THE INSTANT OR ANY PREVIOUS ARREST, INDICTMENT OR  CONVICTION
OF THE SUSPECT SHALL BE VISIBLE OR MADE KNOWN TO THE EYEWITNESS;
  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY  ALL  LINEUP  PARTIC-
IPANTS;
  (L)  IN  A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF VIEW OF
THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE;
  (M) WHEN THERE ARE MULTIPLE SUSPECTS,  EACH  IDENTIFICATION  PROCEDURE
SHALL INCLUDE ONLY ONE SUSPECT;
  (N)  NOTHING  SHALL  BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
POSITION IN THE PHOTO OR LIVE LINEUP;
  (O) NOTHING SHALL BE SAID TO THE EYEWITNESS THAT MIGHT  INFLUENCE  THE
EYEWITNESS'S IDENTIFICATION OF ANY PARTICULAR LINEUP MEMBER;
  (P) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
CATION PROCEDURE IS THE PERPETRATOR;
  (Q) IF THE EYEWITNESS IDENTIFIES A  PERSON  AS  THE  PERPETRATOR,  THE
EYEWITNESS  SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON
BEFORE THE ADMINISTRATOR OBTAINS THE EYEWITNESS'S  CONFIDENCE  STATEMENT
ABOUT THE SELECTION;
  (R)  A  RECORD  OF  THE  IDENTIFICATION  PROCEDURE  SHALL BE MADE THAT
INCLUDES ALL  IDENTIFICATION  AND  NON-IDENTIFICATION  RESULTS  OBTAINED
DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES;
  (S) EFFORTS SHALL BE MADE TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF
A SHOWUP. IN ADDITION:
  (I)  SHOWUPS  SHALL  ONLY  BE PERFORMED WITHIN A REASONABLE TIME OF AN
OFFENSE, USING A LIVE SUSPECT AND IN EXIGENT CIRCUMSTANCES THAT  REQUIRE
THE IMMEDIATE DISPLAY OF A SUSPECT TO AN EYEWITNESS;
  (II) IN THE EVENT OF THE ADMINISTRATION OF A SHOWUP PROCEDURE:
  (A)  A  FULL  AND  DETAILED  DESCRIPTION  OF  THE PERPETRATOR SHALL BE
PROVIDED BY THE EYEWITNESS BEFORE THE EYEWITNESS OBSERVES  THE  SUSPECT.
THIS  STATEMENT  SHALL  ALSO INCLUDE INFORMATION REGARDING THE WITNESS'S
DEGREE OF ATTENTION DURING THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO
VIEW THE PERPETRATOR, AS WELL AS THE CONDITIONS UNDER WHICH THE  EYEWIT-
NESS  OBSERVED  THE  PERPETRATOR  INCLUDING  LOCATION,  TIME,  DISTANCE,
OBSTRUCTIONS,  LIGHTING,  WEATHER  CONDITIONS  AND  OTHER   IMPAIRMENTS,
INCLUDING  BUT NOT LIMITED TO ALCOHOL, DRUGS, STRESS AND VISUAL/AUDITORY
DISABILITIES. THE EYEWITNESS SHALL ALSO BE ASKED  IF  HE  OR  SHE  NEEDS
GLASSES  OR CONTACT LENSES AND WHETHER HE OR SHE WAS WEARING THEM AT THE
TIME OF THE OFFENSE. THE ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS
WAS WEARING GLASSES OR CONTACT LENSES AT THE TIME OF THE  IDENTIFICATION
PROCEDURE;
  (B)  UNLESS  IMPRACTICABLE  THE  EYEWITNESS  SHALL BE TRANSPORTED TO A
NEUTRAL,  NON-LAW  ENFORCEMENT  LOCATION  WHERE  THE  SUSPECT  IS  BEING
DETAINED FOR THE PURPOSES OF A SHOWUP PROCEDURE;
  (C)  EYEWITNESSES  SHALL  BE  PROVIDED  WITH INSTRUCTIONS PRIOR TO THE
SHOWUP, INCLUDING THAT:
  (1) THE PERPETRATOR MAY OR MAY NOT BE THE PERSON THAT IS PRESENTED  TO
THE EYEWITNESS;
  (2)  THE  EYEWITNESS  SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (3) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT  AN  IDENTIFICATION
IS MADE;

A. 2878--A                          5

  (4)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
TIFICATION; AND
  (5)  THE  EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
SPEAK WITH THE MEDIA;
  (D)  MEASURES SHALL BE TAKEN BY INVESTIGATORS AT THE SHOWUP, INCLUDING
THE ADMINISTRATOR OF THE  SHOWUP,  TO  REDUCE  POTENTIALLY  DAMAGING  OR
PREJUDICIAL INFERENCES THAT MAY BE DRAWN BY THE EYEWITNESS, INCLUDING:
  (1)  REFRAINING  FROM  SUGGESTING,  THROUGH  STATEMENTS  OR NON-VERBAL
CONDUCT, THAT THE SUSPECT IS OR MAY BE THE PERPETRATOR OF THE CRIME;
  (2) REMOVING THE SUSPECT FROM A SQUAD CAR; AND
  (3) WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE SUSPECT;
  (E) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A  TIME
SHALL  PARTICIPATE IN THE SHOWUP PROCEDURE. ONLY ONE OF THE EYEWITNESSES
SHALL BE PRESENT AT THE LOCATION OF THE SHOWUP PROCEDURE. IF A  POSITIVE
IDENTIFICATION  IS  MADE, AND AN ARREST IS JUSTIFIED, ADDITIONAL EYEWIT-
NESSES SHALL BE SHOWN LIVE OR PHOTO LINEUPS;
  (F) IF THERE ARE MULTIPLE SUSPECTS, THESE SUSPECTS SHALL BE  SEPARATED
AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES; AND
  (G) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
CATION PROCEDURE IS THE PERPETRATOR.  IF  THE  EYEWITNESS  IDENTIFIES  A
PERSON  AS  THE  PERPETRATOR,  THE  EYEWITNESS SHALL NOT BE PROVIDED ANY
INFORMATION CONCERNING SUCH PERSON BEFORE THE ADMINISTRATOR OBTAINS  THE
EYEWITNESS'S CONFIDENCE STATEMENT ABOUT THE SELECTION;
  (T)  UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
  (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED  DURING
THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
EYEWITNESSES' CONFIDENCE STATEMENTS;
  (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
  (III) THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
  (IV)  IN A PHOTO OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATIONS OF ANY
FILLERS; AND
  (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF  THE  LINEUP  MEMBERS  AND
OTHER  RELEVANT  IDENTIFYING  INFORMATION, AND THE SOURCES OF ALL PHOTO-
GRAPHS OR PERSONS USED IN THE LINEUP;
  (U) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE  IS  IMPRACTICA-
BLE,  THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT THE REASON THERE-
FOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE SHALL  BE  MADE
WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDIVISION.
THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTOGRAPHS USED IN
A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS USED IN A LIVE
LINEUP OR SHOWUP; AND
  (V)  IF  BOTH A VIDEO AND AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
ARE IMPRACTICABLE, THE OFFICER CONDUCTING THE LINEUP SHALL  DOCUMENT  IN
WRITING THE REASON THEREFOR, AND A WRITTEN RECORD OF THE LINEUP SHALL BE
MADE  WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDI-
VISION. THE WRITTEN RECORD SHALL BE SUPPLEMENTED BY ALL  OF  THE  PHOTO-
GRAPHS USED IN A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS
USED IN A LIVE LINEUP OR SHOWUP.
S 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.

A. 2878--A                          6

  FOR  ANY  PHOTO  OR LIVE LINEUP, OR SHOWUP PROCEDURE THAT WAS ADMINIS-
TERED AFTER THE DATE UPON WHICH THIS ARTICLE TOOK EFFECT:
  1.  IF  LAW  ENFORCEMENT  OFFICIALS  OR  PROSECUTING  AGENCIES  DO NOT
SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE  DEFENDANT
MAY  MOVE  TO  SUPPRESS  EYEWITNESS  IDENTIFICATION EVIDENCE PURSUANT TO
ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.
  2.  COURTS SHALL CONSIDER EVIDENCE OF A FAILURE TO COMPLY WITH ANY  OF
THE  PROVISIONS  OF  SECTION  80.20  OF  THIS  ARTICLE WHEN ADJUDICATING
MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE.
  3. IF THE COURT DOES NOT SUPPRESS EYEWITNESS  IDENTIFICATION  EVIDENCE
BUT  FINDS THAT LAW ENFORCEMENT OFFICIALS OR PROSECUTING AGENCIES FAILED
TO SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THIS ARTICLE,  THE  COURT
SHALL   INSTRUCT  THE  JURY  THAT  EYEWITNESS  IDENTIFICATION  PROCEDURE
REQUIREMENTS AS SET FORTH IN THIS CHAPTER WERE DESIGNED  TO  REDUCE  THE
RISK OF MISIDENTIFICATION AND THE JURY MAY CONSIDER CREDIBLE EVIDENCE OF
NON-COMPLIANCE  WHEN ASSESSING THE RELIABILITY OF EYEWITNESS IDENTIFICA-
TIONS.
  4. ADDITIONALLY, IF THE COURT FINDS THAT SUCH SUBSTANTIAL  NON-COMPLI-
ANCE  WITH  THE  PROVISIONS  OF THIS ARTICLE HAVE UNDERMINED THE COURT'S
CONFIDENCE IN THE RELIABILITY  OF  THE  EYEWITNESS  IDENTIFICATION,  THE
COURT  SHALL  ALSO INSTRUCT THE JURY THAT IT SHOULD VIEW THE IDENTIFICA-
TION EVIDENCE WITH DISTRUST.
S 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
  THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CREATE, ADMINISTER AND
CONDUCT TRAINING PROGRAMS FOR PROFESSIONALS INVOLVED IN LAW ENFORCEMENT,
INCLUDING BUT NOT LIMITED TO POLICE AND OTHER LAW ENFORCEMENT  OFFICIALS
AND  RECRUITS,  PROSECUTORS,  JUDGES  AND DEFENSE COUNSEL, REGARDING THE
METHODS, TECHNICAL ASPECTS AND SCIENTIFIC FINDINGS REGARDING  THE  BASIS
OF  THE EYEWITNESS IDENTIFICATION PRACTICES AND PROCEDURES REFERENCED IN
THIS ARTICLE.
  S 3. Section 60.30 of the criminal procedure law is REPEALED.
  S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law, and shall apply to all identification proce-
dures that take place on or after such date.

2013-A2878B (ACTIVE) - Details

Current Committee:: Assembly Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, Title D Art 80 §§80.10 - 80.40, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: A11052
2011-2012: A5317

2013-A2878B (ACTIVE) - Summary

Establishes identification procedures that shall be used for eyewitnesses including live lineups and photo lineups.

2013-A2878B (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2878--B

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 18, 2013
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Codes --  committee  discharged,  bill  amended,  ordered
  reprinted  as  amended  and  recommitted  to  said  committee -- again
  reported from said committee with  amendments,  ordered  reprinted  as
  amended and recommitted to said committee

AN  ACT  to  amend the criminal procedure law, in relation to eyewitness
  identification procedures

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  criminal  procedure  law  is amended by adding a new
section 60.17 to read as follows:
S 60.17 RULES OF EVIDENCE; EXPERT TESTIMONY  IN  CERTAIN  IDENTIFICATION
          CASES.
  IN ANY CRIMINAL PROCEEDING IN WHICH EYEWITNESS IDENTIFICATION TESTIMO-
NY  IS  INTRODUCED,  OR IN OTHER CASES WHERE THE INTERESTS OF JUSTICE SO
REQUIRE, THE COURT MAY ADMIT EXPERT TESTIMONY REGARDING RELEVANT ASPECTS
OF IDENTIFICATION PROCEDURES, INCLUDING BUT NOT LIMITED TO FACTORS  THAT
AFFECT THE RELIABILITY AND ACCURACY OF EYEWITNESS IDENTIFICATION.
  S  2. Title D of the criminal procedure law is amended by adding a new
article 80 to read as follows:
                               ARTICLE 80
                        IDENTIFICATION PROCEDURES
SECTION 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
        80.20 IDENTIFICATION PROCEDURES; GENERALLY.
        80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
        80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
S 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
  AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE  FOLLOWING
MEANINGS:
  1. "ADMINISTRATOR" MEANS THE PERSON CONDUCTING THE PHOTO OR LIVE LINE-
UP.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01679-03-3

A. 2878--B                          2

  2.  "SUSPECT"  MEANS  THE PERSON BELIEVED BY LAW ENFORCEMENT TO BE THE
POSSIBLE PERPETRATOR OF THE CRIME.
  3.  "BLIND"  MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY OF THE
SUSPECT.
  4. "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS,  BUT
DOES  NOT  KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE EYEWITNESS AT
ANY GIVEN TIME.
  5. "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR  NEAR
THE  SCENE  OF  AN  OFFENSE  OR UPON SOME OTHER OCCASION RELEVANT TO THE
CASE.
  6. "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON  WHO  IS
NOT  SUSPECTED OF AN OFFENSE AND IS INCLUDED IN AN IDENTIFICATION PROCE-
DURE.
  7. "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP, A PHOTO LINEUP,  OR
A SHOWUP.
  8. "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH A GROUP OF
PERSONS,  INCLUDING  THE  SUSPECTED  PERPETRATOR OF AN OFFENSE AND OTHER
PERSONS NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS  FOR
THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
AS THE PERPETRATOR.
  9.  "PHOTO LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN ARRAY
OF PHOTOGRAPHS, INCLUDING A PHOTOGRAPH OF THE SUSPECTED  PERPETRATOR  OF
AN  OFFENSE AND ADDITIONAL PHOTOGRAPHS OF OTHER PERSONS NOT SUSPECTED OF
THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD COPY  FORM  OR
VIA COMPUTER FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDEN-
TIFIES THE SUSPECT AS THE PERPETRATOR.
  10.  "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN EYEWITNESS
IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
ER THE EYEWITNESS IDENTIFIES THIS INDIVIDUAL AS THE PERPETRATOR.
S 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
  1. IF IDENTIFICATION PROCEDURES (A) HAVE BEEN CONDUCTED IN  ACCORDANCE
WITH THIS SECTION AND UNDER CIRCUMSTANCES CONSISTENT WITH SUCH RIGHTS AS
AN  ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS STATE OR OF
THE UNITED STATES; AND (B) ARE PROPERLY DOCUMENTED  IN  ACCORDANCE  WITH
PARAGRAPHS (T), (U) AND (V) OF SUBDIVISION TWO OF THIS SECTION, TESTIMO-
NY  MAY BE GIVEN BY A WITNESS THAT HE OR SHE OBSERVED A PERSON OR PHOTO-
GRAPH OF A PERSON ON AN OCCASION PRIOR TO HIS OR HER TESTIMONY  WHOM  HE
OR  SHE RECOGNIZES AS THE SAME PERSON WHOM HE OR SHE HAD OBSERVED ON THE
FIRST OR INCRIMINATING OCCASION.
  2. ANY CRIMINAL JUSTICE ENTITY  CONDUCTING  EYEWITNESS  IDENTIFICATION
PROCEDURES  SHALL ADOPT SPECIFIC WRITTEN PROCEDURES FOR CONDUCTING PHOTO
AND LIVE LINEUPS THAT COMPLY WITH THE FOLLOWING REQUIREMENTS:
  (A) PRIOR TO A PHOTO OR LIVE LINEUP, LAW ENFORCEMENT SHALL  RECORD  AS
COMPLETE  A  DESCRIPTION  AS POSSIBLE OF THE PERPETRATOR PROVIDED BY THE
EYEWITNESS, IN THE EYEWITNESS'S OWN WORDS.  THIS  STATEMENT  SHALL  ALSO
INCLUDE  INFORMATION  REGARDING THE WITNESS'S DEGREE OF ATTENTION DURING
THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO VIEW THE  PERPETRATOR,  AS
WELL AS THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERPETRA-
TOR, INCLUDING LOCATION, TIME, DISTANCE, OBSTRUCTIONS, LIGHTING, WEATHER
CONDITIONS  AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO ALCOHOL,
DRUGS, STRESS AND  VISUAL/AUDITORY  DISABILITIES.  THE  EYEWITNESS  ALSO
SHALL  BE ASKED IF HE OR SHE NEEDS GLASSES OR CONTACT LENSES AND WHETHER
HE OR SHE WAS WEARING THEM AT THE TIME OF THE OFFENSE. THE ADMINISTRATOR
SHALL NOTE WHETHER THE EYEWITNESS WAS WEARING GLASSES OR CONTACT  LENSES
AT THE TIME OF THE IDENTIFICATION PROCEDURES;

A. 2878--B                          3

  (B) UNLESS IMPRACTICABLE, A BLIND ADMINISTRATOR SHALL CONDUCT THE LIVE
OR PHOTO LINEUP;
  (C)  WHEN IT IS IMPRACTICABLE FOR A BLIND ADMINISTRATOR TO CONDUCT THE
EYEWITNESS IDENTIFICATION PROCEDURE, THE  INVESTIGATOR  SHALL  STATE  IN
WRITING THE REASON THEREFOR, AND SHALL CONDUCT THE LINEUP BLINDED;
  (D)  THE  EYEWITNESS  SHALL  BE INSTRUCTED, WITHOUT OTHER EYEWITNESSES
PRESENT, PRIOR TO ANY LIVE OR PHOTO LINEUP THAT:
  (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
TIFICATION PROCEDURE;
  (II) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;
  (III)  THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN  IDENTIFICATION
IS MADE;
  (V)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
TIFICATION; AND
  (VI)  THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
SPEAK WITH THE MEDIA;
  (E)  UNLESS  IMPRACTICABLE,  THE  PHOTOGRAPH  OF THE SUSPECT USED IN A
PHOTO LINEUP SHALL BE CONTEMPORARY AND SHALL RESEMBLE HIS OR HER APPEAR-
ANCE AT THE TIME OF THE OFFENSE. WHEN IT IS IMPRACTICABLE, THE  INVESTI-
GATOR SHALL STATE IN WRITING THE REASON THEREFOR;
  (F) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
GRAPHS  THEMSELVES  OR  THE  BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS STAND OUT;
  (G) A PHOTO OR LIVE LINEUP SHALL  BE  COMPOSED  SO  THAT  THE  FILLERS
GENERALLY  RESEMBLE  THE  EYEWITNESS'S  DESCRIPTION  OF THE PERPETRATOR,
WHILE ENSURING THAT THE SUSPECT DOES NOT STAND OUT FROM THE FILLERS;
  (H) IN A PHOTO OR LIVE LINEUP, FILLERS  SHALL  POSSESS  THE  FOLLOWING
CHARACTERISTICS:
  (I)  ALL  FILLERS SELECTED SHALL RESEMBLE THE EYEWITNESS'S DESCRIPTION
OF THE PERPETRATOR IN SIGNIFICANT FEATURES INCLUDING, BUT NOT LIMITED TO
FACE, WEIGHT, BUILD AND SKIN TONE, AND INCLUDING ANY UNIQUE  OR  UNUSUAL
FEATURES  TO THE EXTENT POSSIBLE INCLUDING, BUT NOT LIMITED TO ANY SCARS
OR  TATTOOS;  IF  THE  SUSPECT  DOES  NOT  RESEMBLE   THE   EYEWITNESS'S
DESCRIPTION  OF  THE  PERPETRATOR  IN  SIGNIFICANT FEATURES, THE FILLERS
SELECTED SHALL RESEMBLE THE SUSPECT IN SIGNIFICANT FEATURES;
  (II) AT LEAST FIVE FILLERS SHALL BE INCLUDED IN  A  PHOTO  LINEUP,  IN
ADDITION TO THE SUSPECT;
  (III)  AT  LEAST  FOUR  FILLERS SHALL BE INCLUDED IN A LIVE LINEUP, IN
ADDITION TO THE SUSPECT; AND
  (IV) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A PHOTO  LINEUP  OR  LIVE
LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
OF  INVOLVEMENT  IN  THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
ANY PRIOR LINEUPS;
  (I) IF THERE ARE MULTIPLE EYEWITNESSES:
  (I) EACH EYEWITNESS SHALL VIEW PHOTO OR LIVE LINEUPS SEPARATELY;
  (II) THE SUSPECT SHALL BE PLACED IN A DIFFERENT POSITION IN  THE  LIVE
LINEUP AND/OR PHOTO LINEUP FOR EACH EYEWITNESS; AND
  (III) THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH EACH
OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED;

A. 2878--B                          4

  (J)  IN  AN  IDENTIFICATION  PROCEDURE,  NO  WRITINGS  OR  INFORMATION
CONCERNING THE INSTANT OR ANY PREVIOUS ARREST, INDICTMENT OR  CONVICTION
OF THE SUSPECT SHALL BE VISIBLE OR MADE KNOWN TO THE EYEWITNESS;
  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY  ALL  LINEUP  PARTIC-
IPANTS;
  (L)  IN  A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF VIEW OF
THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE;
  (M) WHEN THERE ARE MULTIPLE SUSPECTS,  EACH  IDENTIFICATION  PROCEDURE
SHALL INCLUDE ONLY ONE SUSPECT;
  (N)  NOTHING  SHALL  BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
POSITION IN THE PHOTO OR LIVE LINEUP;
  (O) NOTHING SHALL BE SAID TO THE EYEWITNESS THAT MIGHT  INFLUENCE  THE
EYEWITNESS'S IDENTIFICATION OF ANY PARTICULAR LINEUP MEMBER;
  (P) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
CATION PROCEDURE IS THE PERPETRATOR;
  (Q) IF THE EYEWITNESS IDENTIFIES A  PERSON  AS  THE  PERPETRATOR,  THE
EYEWITNESS  SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON
BEFORE THE ADMINISTRATOR OBTAINS THE EYEWITNESS'S  CONFIDENCE  STATEMENT
ABOUT THE SELECTION;
  (R)  A  RECORD  OF  THE  IDENTIFICATION  PROCEDURE  SHALL BE MADE THAT
INCLUDES ALL  IDENTIFICATION  AND  NON-IDENTIFICATION  RESULTS  OBTAINED
DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES;
  (S) EFFORTS SHALL BE MADE TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF
A SHOWUP. IN ADDITION:
  (I)  SHOWUPS  SHALL  ONLY  BE PERFORMED WITHIN A REASONABLE TIME OF AN
OFFENSE, USING A LIVE SUSPECT AND IN EXIGENT CIRCUMSTANCES THAT  REQUIRE
THE IMMEDIATE DISPLAY OF A SUSPECT TO AN EYEWITNESS;
  (II) IN THE EVENT OF THE ADMINISTRATION OF A SHOWUP PROCEDURE:
  (A)  A  FULL  AND  DETAILED  DESCRIPTION  OF  THE PERPETRATOR SHALL BE
PROVIDED BY THE EYEWITNESS BEFORE THE EYEWITNESS OBSERVES  THE  SUSPECT.
THIS  STATEMENT  SHALL  ALSO INCLUDE INFORMATION REGARDING THE WITNESS'S
DEGREE OF ATTENTION DURING THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO
VIEW THE PERPETRATOR, AS WELL AS THE CONDITIONS UNDER WHICH THE  EYEWIT-
NESS  OBSERVED  THE  PERPETRATOR  INCLUDING  LOCATION,  TIME,  DISTANCE,
OBSTRUCTIONS,  LIGHTING,  WEATHER  CONDITIONS  AND  OTHER   IMPAIRMENTS,
INCLUDING  BUT NOT LIMITED TO ALCOHOL, DRUGS, STRESS AND VISUAL/AUDITORY
DISABILITIES. THE EYEWITNESS SHALL ALSO BE ASKED  IF  HE  OR  SHE  NEEDS
GLASSES  OR CONTACT LENSES AND WHETHER HE OR SHE WAS WEARING THEM AT THE
TIME OF THE OFFENSE. THE ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS
WAS WEARING GLASSES OR CONTACT LENSES AT THE TIME OF THE  IDENTIFICATION
PROCEDURE;
  (B)  UNLESS  IMPRACTICABLE  THE  EYEWITNESS  SHALL BE TRANSPORTED TO A
NEUTRAL,  NON-LAW  ENFORCEMENT  LOCATION  WHERE  THE  SUSPECT  IS  BEING
DETAINED FOR THE PURPOSES OF A SHOWUP PROCEDURE;
  (C)  EYEWITNESSES  SHALL  BE  PROVIDED  WITH INSTRUCTIONS PRIOR TO THE
SHOWUP, INCLUDING THAT:
  (1) THE PERPETRATOR MAY OR MAY NOT BE THE PERSON THAT IS PRESENTED  TO
THE EYEWITNESS;
  (2)  THE  EYEWITNESS  SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (3) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT  AN  IDENTIFICATION
IS MADE;

A. 2878--B                          5

  (4)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
TIFICATION; AND
  (5)  THE  EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
SPEAK WITH THE MEDIA;
  (D)  MEASURES SHALL BE TAKEN BY INVESTIGATORS AT THE SHOWUP, INCLUDING
THE ADMINISTRATOR OF THE  SHOWUP,  TO  REDUCE  POTENTIALLY  DAMAGING  OR
PREJUDICIAL INFERENCES THAT MAY BE DRAWN BY THE EYEWITNESS, INCLUDING:
  (1)  REFRAINING  FROM  SUGGESTING,  THROUGH  STATEMENTS  OR NON-VERBAL
CONDUCT, THAT THE SUSPECT IS OR MAY BE THE PERPETRATOR OF THE CRIME;
  (2) REMOVING THE SUSPECT FROM A SQUAD CAR; AND
  (3) WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE SUSPECT;
  (E) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A  TIME
SHALL  PARTICIPATE IN THE SHOWUP PROCEDURE. ONLY ONE OF THE EYEWITNESSES
SHALL BE PRESENT AT THE LOCATION OF THE SHOWUP PROCEDURE. IF A  POSITIVE
IDENTIFICATION  IS  MADE, AND AN ARREST IS JUSTIFIED, ADDITIONAL EYEWIT-
NESSES SHALL BE SHOWN LIVE OR PHOTO LINEUPS;
  (F) IF THERE ARE MULTIPLE SUSPECTS, THESE SUSPECTS SHALL BE  SEPARATED
AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES; AND
  (G) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
CATION PROCEDURE IS THE PERPETRATOR.  IF  THE  EYEWITNESS  IDENTIFIES  A
PERSON  AS  THE  PERPETRATOR,  THE  EYEWITNESS SHALL NOT BE PROVIDED ANY
INFORMATION CONCERNING SUCH PERSON BEFORE THE ADMINISTRATOR OBTAINS  THE
EYEWITNESS'S CONFIDENCE STATEMENT ABOUT THE SELECTION;
  (T)  UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
  (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED  DURING
THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
EYEWITNESSES' CONFIDENCE STATEMENTS;
  (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
  (III) THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
  (IV)  IN A PHOTO OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATIONS OF ANY
FILLERS; AND
  (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF  THE  LINEUP  MEMBERS  AND
OTHER  RELEVANT  IDENTIFYING  INFORMATION, AND THE SOURCES OF ALL PHOTO-
GRAPHS OR PERSONS USED IN THE LINEUP;
  (U) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE  IS  IMPRACTICA-
BLE,  THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT THE REASON THERE-
FOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE SHALL  BE  MADE
WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDIVISION.
THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTOGRAPHS USED IN
A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS USED IN A LIVE
LINEUP OR SHOWUP; AND
  (V)  IF  BOTH A VIDEO AND AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
ARE IMPRACTICABLE, THE OFFICER CONDUCTING THE LINEUP SHALL  DOCUMENT  IN
WRITING THE REASON THEREFOR, AND A WRITTEN RECORD OF THE LINEUP SHALL BE
MADE  WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDI-
VISION. THE WRITTEN RECORD SHALL BE SUPPLEMENTED BY ALL  OF  THE  PHOTO-
GRAPHS USED IN A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS
USED IN A LIVE LINEUP OR SHOWUP.
S 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.

A. 2878--B                          6

  FOR  ANY  PHOTO  OR LIVE LINEUP, OR SHOWUP PROCEDURE THAT WAS ADMINIS-
TERED AFTER THE DATE UPON WHICH THIS ARTICLE TOOK EFFECT:
  1.  IF  LAW  ENFORCEMENT  OFFICIALS  OR  PROSECUTING  AGENCIES  DO NOT
SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE  DEFENDANT
MAY  MOVE  TO  SUPPRESS  EYEWITNESS  IDENTIFICATION EVIDENCE PURSUANT TO
ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.
  2.  COURTS SHALL CONSIDER EVIDENCE OF A FAILURE TO COMPLY WITH ANY  OF
THE  PROVISIONS  OF  SECTION  80.20  OF  THIS  ARTICLE WHEN ADJUDICATING
MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE.
  3. IF THE COURT DOES NOT SUPPRESS EYEWITNESS  IDENTIFICATION  EVIDENCE
BUT  FINDS THAT LAW ENFORCEMENT OFFICIALS OR PROSECUTING AGENCIES FAILED
TO SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THIS ARTICLE,  THE  COURT
SHALL   INSTRUCT  THE  JURY  THAT  EYEWITNESS  IDENTIFICATION  PROCEDURE
REQUIREMENTS AS SET FORTH IN THIS CHAPTER WERE DESIGNED  TO  REDUCE  THE
RISK OF MISIDENTIFICATION AND THE JURY MAY CONSIDER CREDIBLE EVIDENCE OF
NON-COMPLIANCE  WHEN ASSESSING THE RELIABILITY OF EYEWITNESS IDENTIFICA-
TIONS.
  4. ADDITIONALLY, IF THE COURT FINDS THAT SUCH SUBSTANTIAL  NON-COMPLI-
ANCE  WITH  THE  PROVISIONS  OF THIS ARTICLE HAVE UNDERMINED THE COURT'S
CONFIDENCE IN THE RELIABILITY  OF  THE  EYEWITNESS  IDENTIFICATION,  THE
COURT  SHALL  ALSO INSTRUCT THE JURY THAT IT SHOULD VIEW THE IDENTIFICA-
TION EVIDENCE WITH DISTRUST.
S 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
  THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CREATE, ADMINISTER AND
CONDUCT TRAINING PROGRAMS FOR PROFESSIONALS INVOLVED IN LAW ENFORCEMENT,
INCLUDING BUT NOT LIMITED TO POLICE AND OTHER LAW ENFORCEMENT  OFFICIALS
AND  RECRUITS,  PROSECUTORS,  JUDGES  AND DEFENSE COUNSEL, REGARDING THE
METHODS, TECHNICAL ASPECTS AND SCIENTIFIC FINDINGS REGARDING  THE  BASIS
OF  THE EYEWITNESS IDENTIFICATION PRACTICES AND PROCEDURES REFERENCED IN
THIS ARTICLE.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law, and shall apply to all identification proce-
dures that take place on or after such date.

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Assembly Bill A2878B

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Sponsored By

O'DONNELL

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

2013-A2878 - Details

2013-A2878 - Summary

2013-A2878 - Bill Text download pdf

2013-A2878A - Details

2013-A2878A - Summary

2013-A2878A - Bill Text download pdf

2013-A2878B (ACTIVE) - Details

2013-A2878B (ACTIVE) - Summary

2013-A2878B (ACTIVE) - Bill Text download pdf

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