NY State Senate Bill 2015-S4528

Senate Bill S4528

2015-2016 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 Senate Committee Codes 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 06, 2016	referred to codes
Mar 26, 2015	referred to codes

2015-S4528 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, add Art 80 Title D §§80.10 - 80.40, CP L
Versions Introduced in 2017-2018 Legislative Session:: S1819

2015-S4528 (ACTIVE) - Summary

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

2015-S4528 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4528

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to eyewitness identification procedures

PURPOSE OR GENERAL IDEA OF BILL:

This bill would establish procedures to reduce the occurrence of
erroneous eyewitness identifications.

SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill adds a new section 60.17 to the Criminal
Procedure Law ("CPL") to provide for the treatment of expert testimony
in the context of eyewitness identification.

Section 2 of the bill adds a new article 80 to the CPL to provide the
procedures to be used with respect to eyewitness identification. New
CPL section 80.10 contains definitions, new CPL section 80.20 sets out
the procedures to be followed, new CPL section 80.30 addresses
evidentiary matters, and new CPL section 80.40 provides for training.

Section 3 of the bill repeals CPL section 60.30.

Section 4 of the bill is the effective date.

JUSTIFICATION:

In October 2005, the Assembly Codes Committee's Subcommittee on
Criminal Procedure, chaired by Assembly Member O'Donnell, conducted a
roundtable on eyewitness identification, with participation by a
variety of experts in the field as well as representatives of law
enforcement and the defense bar. The purpose of the 2005 roundtable
was to review and evaluate methods that may improve the accuracy and
reliability of eyewitness identification procedures, with the long
term goal of determining whether legislation was needed, and if so,
what form it should take. Many of the issues discussed at that
roundtable were examined in depth by the New York State Bar
Association's Task Force on Wrongful Convictions, and this bill is one
of six bills based on the Task Force's recommendations.

In 2008, the New York State Bar Association created a Task Force on
Wrongful Convictions, which examined 53 cases where a defendant was
wrongfully convicted of a crime and later exonerated. Task Force
members reviewed all available documentation and in many cases also
interviewed attorneys, law enforcement personnel and judges involved
in both the original cases and subsequent exoneration proceedings. In
its final report, approved by the Bar Association in 2009, the Task
Force identified six root causes that were primarily responsible for
the wrongful convictions. This bill is intended to address one of the
causes so identified - identification procedures and the
misidentification of the accused by the victim and/or one or more
eyewitnesses. See, Final Report of the New York State Bar
Association's Task Force on Wrongful Convictions, dated April 4, 2009,
available at www.nysba.org, (hereinafter referred to as Task Force
Final Report) at pages 5-6.


In comprehensive studies that have been done nationwide, and in the
analysis of the cases identified by the Task Force, erroneous
identifications were responsible for more wrongful convictions than
any other single factor. Task Force Final Report at 45. Further,
existing legal protections, such as cross-examination of witnesses and
the presence of counsel at lineups, target purposeful as well as
unintentional misconduct, and do not sufficiently protect against
witnesses who mistakenly believe that they are making the correct
identification. Id. Nor does the appellate process provide effective
corrective measures. Id. At 46-49. There is a need to reduce or
eliminate the problem of erroneous eyewitness identifications early in
the criminal justice process in order to ensure that reliable evidence
is presented at trial and that verdicts are based on accurate
information, and, to the extent possible, to ensure that innocent
individuals do not even enter the criminal justice system, thus
freeing law enforcement to devote resources to identifying and
pursuing the guilty. Thus, efforts need to be made at the
investigative level to enhance the accuracy of identification
procedures, and at the trial level to ensure that juries are properly
informed of the factors that may affect the reliability of the
identification and, if appropriate, the limitations of such
procedures.

To address these issues, this bill includes provisions for double
blind administration, cautionary instructions, effective use of
fillers, permitting only one suspect per lineup, and documentation of
the identification procedure. It also permits expert testimony on
eyewitness identification at trial and provides for jury instructions
on eyewitness identification. For the first time in New York, this
bill will also permit evidence of photographic identifications to be
admitted if they have been properly conducted and documented in
accordance with the procedures set forth in new CPL Article 80. The
bill also provides sanctions for failure to comply with the mandated
procedures.

PRIOR LEGISLATIVE HISTORY:

A.5317-A (2011-2012, to third reading);
A.11052-A/S.7842-A (2010)

FISCAL IMPLICATIONS:

To be determined.

EFFECTIVE DATE:

This act shall take effect 180 days after it shall have become a law
and shall apply to all identification procedures that take place on or
after the effective date.

2015-S4528 (ACTIVE) - Bill Text download pdf

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

                                  4528

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             March 26, 2015
                               ___________

Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

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.
  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.
                                                           LBD10200-01-5

S. 4528                             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;

S. 4528                             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;

S. 4528                             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)  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;
  (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

S. 4528                             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

S. 4528                             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.  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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