Bill S4790-2013

Authorizes introduction of evidence in criminal trial or juvenile delinquency case of subsequent identification of defendant based on a photograph or video image

Relates to rules of evidence for identification by means of previous recognition; provides that in any criminal or juvenile delinquency proceeding in which the defendant's or respondent's commission of an offense is at issue, testimony may be given by a witness when such witness observed a pictorial, photographic, electronic, filmed or videotaped reproduction of a person whom he or she recognized as the same person he or she had observed on a previous incriminating occasion.

Details

Actions

  • Jan 8, 2014: REFERRED TO CODES
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • May 22, 2013: referred to codes
  • May 22, 2013: DELIVERED TO ASSEMBLY
  • May 22, 2013: PASSED SENATE
  • May 21, 2013: ADVANCED TO THIRD READING
  • May 20, 2013: 2ND REPORT CAL.
  • May 8, 2013: 1ST REPORT CAL.613
  • Apr 24, 2013: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - May 8, 2013
Ayes (14): Nozzolio, Boyle, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, O'Mara, Squadron, Espaillat, Hoylman, O'Brien, Krueger
Nays (1): Perkins

Memo

BILL NUMBER:S4790

TITLE OF BILL: An act to amend the criminal procedure law and the family court act, in relation to evidence of identification

PURPOSE: To permit witnesses to testify regarding out-of-court identifications of defendants made by means of pictorial, photographic, electronic, filmed or videotaped reproductions of such defendants.

SUMMARY OF PROVISIONS: This bill amends the following sections of the Criminal Procedure Law dealing with the rules of evidence: 60.25 (a)(1); 60.30; 710.20(6) and 710.30(1). This bill also amends the corresponding sections of the Family Court Act dealing with the rules of evidence with regard to juveniles, which are as follows: 343.3; and 343.4. These amendments add provisions to allow identification of defendants by pictorial, photographic, electronic, filmed or videotaped reproduction.

JUSTIFICATION: New York is alone in prohibiting the admission of evidence of an out-of-court identification conducted by other than corporeal means. An identification by photo array, no matter how fairly conducted, is inadmissible as part of the prosecution's case-in-chief. It is the rule in the Federal System and in the other 49 states that out-of-court photographic identification be treated the same as corporeal identifications (see Federal Rule of Evidence 801 (d)(1)(C). These jurisdictions recognize that there is no valid reason for an absolute prohibition against trial testimony regarding photographic identifications. All identification procedures are subject to the same pretrial hearings mandated by UNITED STATES V. WADE 388 U.S.218 (1967). Significantly. the current New York Law prohibition antedates the development of the WADE hearing and was intended to provide trial courts with the means to insure the propriety of extrajudicial identifications. Since the WADE decision, the existing New York Law is no longer justified.

Non-suggestive photo identifications are legitimate law enforcement tools. When these identifications are made known to jurors, they will be better able to understand the basis for a subsequent in-court identification. In addition, when an arrest results from a photographic identification, the prosecution must now follow an often tortured course of proof to withhold the evidence of such an identification from the jury. The result is that the jurors are often hard pressed to understand the circumstances that led to the arrest in the case.

Sufficient protection against identifications of insufficient or questionable certainty are provided by the pretrial WADE hearing and the availability of witnesses for cross-examination. As tong as a photographic or other non-corporeal identification meets the required legal tests of fairness and reliability, there is no valid reason to withhold it from the trier of fact. Indeed, to withhold such evidence in criminal trials is to create needless uncertainty and an unwarranted risk of unjust results. By permitting witnesses to testify regarding out-of-court identifications of defendants made by means of pictorial. photographic, electronic, filmed or videotaped reproductions, this bill will permit jurors to more accurately know

the facts of the case and thus arrive at a verdict more accurately related to those facts.

LEGISLATIVE HISTORY: 2011/2012 - S.1999 - Passed Senate/Assembly Judiciary 2007/2008 - S.638 - Passed Senate /Assembly Codes 2005/2006 - S.486 - Passed Senate/Assembly Codes 2003/2004 - S.3827-A - Passed Senate/Assembly Codes 2001/2002 - S.59 - Passed Senate/Assembly Codes 1999/2000 - S.130 - Passed Senate/Assembly Codes 1997/1998 - S.3503 Passed Senate/Assembly Codes

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE: This act shall take effect on the first day of November next succeeding the date on which it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 4790 2013-2014 Regular Sessions IN SENATE April 24, 2013 ___________
Introduced by Sen. SKELOS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law and the family court act, in relation to evidence of identification THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 60.25 of the criminal procedure law, subparagraph (ii) of paragraph (a) of subdivision 1 as amended by chapter 479 of the laws of 1977, is amended to read as follows: S 60.25 Rules of evidence; identification by means of previous recogni- tion, in absence of present identification. 1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when: (a) Such witness testifies that: (i) He OR SHE observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and (ii) On a subsequent occasion he OR SHE observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person OR A PICTO- RIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF A PERSON whom he OR SHE recognized as the same person whom he OR SHE had observed on the first or incriminating occasion; and (iii) He OR SHE is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and (b) It is established that the defendant is in fact the person whom the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION THE WITNESS OBSERVED AND RECOGNIZED on the second occasion. Such fact may be established by
testimony of another person or persons to whom the witness promptly declared his OR HER recognition on such occasion AND BY SUCH PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION. 2. Under circumstances prescribed in subdivision one, such witness may testify at the criminal proceeding that the person whom he OR SHE observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second occasion is the same person whom he OR SHE observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second occasion, constitutes evidence in chief. S 2. Section 60.30 of the criminal procedure law, as amended by chap- ter 479 of the laws of 1977, is amended to read as follows: S 60.30 Rules of evidence; identification by means of previous recogni- tion, in addition to present identification. In any criminal proceeding in which the defendant's commission of an offense is in issue, a witness who testifies that (a) he OR SHE observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he OR SHE observed the defendant, OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF THE DEFENDANT, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recog- nized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF HIM OR HER as the same person whom he OR SHE had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he OR SHE observed on the first or incriminating occasion, also describe his OR HER previ- ous recognition of the defendant and testify that the person whom he OR SHE observed OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED on such second occasion is the same person whom he OR SHE had observed on the first or incriminat- ing occasion. Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELEC- TRONIC, FILMED OR VIDEOTAPED REPRODUCTION constitutes evidence in chief. S 3. Subdivision 6 of section 710.20 of the criminal procedure law, as amended by chapter 8 of the laws of 1976 and renumbered by chapter 481 of the laws of 1983, is amended to read as follows: 6. Consists of potential testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, which potential testi- mony would not be admissible upon the prospective trial of such charge owing to an improperly made previous identification of the defendant OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF THE DEFENDANT by the prospective witness. S 4. Subdivision 1 of section 710.30 of the criminal procedure law, as separately amended by chapters 8 and 194 of the laws of 1976, is amended to read as follows: 1. Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, or (b) testimony
regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him OR HER OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF HIM OR HER as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered. S 5. Sections 343.3 and 343.4 of the family court act, as added by chapter 920 of the laws of 1982, are amended to read as follows: S 343.3. Rules of evidence; identification by means of previous recog- nition in absence of present identification. 1. In any juvenile delin- quency proceeding in which the respondent's commission of a crime is in issue, testimony as provided in subdivision two may be given by a witness when: (a) such witness testifies that: (i) he OR SHE observed the person claimed by the presentment agency to be the respondent either at the time and place of the commission of the crime or upon some other occasion relevant to the case; and (ii) on a subsequent occasion he OR SHE observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person OR A PICTO- RIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF A PERSON whom he OR SHE recognized as the same person whom he OR SHE had observed on the first incriminating occasion; and (iii) he OR SHE is unable at the proceeding to state, on the basis of present recollection, whether or not the respondent is the person in question; and (b) it is established that the respondent is in fact the person whom the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION THE WITNESS OBSERVED AND RECOGNIZED on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his OR HER recognition on such occasion AND BY SUCH PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION. 2. Under circumstances prescribed in subdivision one, such witness may testify at the proceeding that the person whom he OR SHE observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDE- OTAPED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second occasion is the same person whom he OR SHE observed on the first or incriminating occasion. Such testimony, together with the evidence that the respondent is in fact the person whom the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDE- OTAPED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second occasion, constitutes evidence in chief. S 343.4. Rules of evidence; identification by means of previous recog- nition, in addition to present identification. In any juvenile delin- quency proceeding in which the respondent's commission of a crime is in issue, a witness who testifies that: (a) he OR SHE observed the person claimed by the presentment agency to be the respondent either at the time and place of the commission of the crime or upon some other occa- sion relevant to the case, and (b) on the basis of present recollection, the respondent is the person in question, and (c) on a subsequent occa- sion he OR SHE observed the respondent, OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF THE RESPONDENT under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and
then also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELEC- TRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF HIM OR HER as the same person whom he OR SHE had observed on the first or incriminating occa- sion, may, in addition to making an identification of the respondent at the delinquency proceeding on the basis of present recollection as the person whom he OR SHE observed on the first or incriminating occasion, also describe his OR HER previous recognition of the respondent and testify that the person whom he OR SHE observed OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED on such second occasion is the same person whom he OR SHE had observed on the first or incriminating occasion. Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION constitutes evidence in chief. S 6. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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