NY State Assembly Bill 2009-A11052

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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
Jun 21, 2010	reported referred to rules
Jun 16, 2010	print number 11052a
Jun 16, 2010	amend and recommit to codes
May 12, 2010	referred to codes

Bill Amendments

Original

A (Active)

2009-A11052 - Details

Current Committee:: Assembly Rules
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, Art 80 §§80.10 - 80.40, rpld §60.30, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A5317
2013-2014: A2878

2009-A11052 - Summary

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

2009-A11052 - Sponsor Memo

                                BILL NUMBER:A11052

TITLE  OF BILL:  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

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  identifica-
tion,

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  Subcom-
mittee  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 reli-
ability 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 exam-
ined 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 identi-
fied six root causes that were primarily responsible  for  the  wrongful
convictions: This bill is intended to address one of the causes so iden-
tified  -  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.orq, (herein-
after 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 identifi-
cations 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  miscon-
duct,  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 proce-
dures, and at the  trial  level  to  ensure  that  juries  are  properly
informed of the factors that may affect the reliability of the identifi-
cation 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 iden-
tification 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 sanc-
tions for failure to comply with the mandated procedures.

PRIOR LEGISLATIVE HISTORY: None. New bill.

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.

2009-A11052 - Bill Text download pdf

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

                                  11052

                          I N  A S S E M B L Y

                              May 12, 2010
                               ___________

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. 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.
  3. "BLIND" MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY  OF  THE
SUSPECT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD17224-01-0

A. 11052                            2

  4.  "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS, BUT
DOES NOT KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE EYEWITNESS.
  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 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;
  (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;

A. 11052                            3

  (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 UNDULY 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 UNDULY 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  INCLUDING,  BUT  NOT  LIMITED  TO ANY SCARS OR TATTOOS; IF THE
SUSPECT DOES NOT RESEMBLE THE EYEWITNESS'S DESCRIPTION OF THE  PERPETRA-
TOR  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;
  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY  ALL  LINEUP  PARTIC-
IPANTS;

A. 11052                            4

  (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  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
  (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.

A. 11052                            5

  (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 TRIAL
COURT SHALL, ON MOTION OF THE DEFENDANT, CONDUCT A HEARING AS TO WHETHER
AN IDENTIFICATION BY THE  WITNESS  OF  THE  DEFENDANT  AT  THE  CRIMINAL
PROCEEDING IS NEVERTHELESS SUFFICIENTLY RELIABLE.

A. 11052                            6

  2.  EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
ARTICLE SHALL BE CONSIDERED BY TRIAL COURTS IN ADJUDICATING  MOTIONS  TO
SUPPRESS EYEWITNESS IDENTIFICATION.
  3.  EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
ARTICLE SHALL BE ADMISSIBLE IN SUPPORT OF CLAIMS OF EYEWITNESS  MISIDEN-
TIFICATION AS LONG AS SUCH EVIDENCE IS OTHERWISE ADMISSIBLE.
  4. IF LAW ENFORCEMENT OFFICIALS OR PROSECUTING AGENCIES FAIL TO COMPLY
WITH  ANY  OF  THE  PROVISIONS  OF  THIS  ARTICLE, THE TRIAL COURT SHALL
INSTRUCT THE JURY THAT SUCH PROVISIONS WERE DESIGNED TO REDUCE THE  RISK
OF  MISIDENTIFICATION  AND  THAT  IT  MAY  CONSIDER CREDIBLE EVIDENCE OF
NONCOMPLIANCE WHEN ASSESSING THE RELIABILITY OF  EYEWITNESS  IDENTIFICA-
TIONS.
  5.  WHEN EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF
THIS ARTICLE, OR OF ANY OTHER UNNECESSARILY SUGGESTIVE  PROCEDURES,  HAS
BEEN  PRESENTED  AND  HAS UNDERMINED THE COURT'S CONFIDENCE IN THE RELI-
ABILITY OF THE EYEWITNESS IDENTIFICATION, THE  COURT  MAY  INSTRUCT  THE
JURY THAT IT SHOULD VIEW THE IDENTIFICATION 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.

2009-A11052A (ACTIVE) - Details

Current Committee:: Assembly Rules
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, Art 80 §§80.10 - 80.40, rpld §60.30, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A5317
2013-2014: A2878

2009-A11052A (ACTIVE) - Summary

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

2009-A11052A (ACTIVE) - Bill Text download pdf

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

                                11052--A

                          I N  A S S E M B L Y

                              May 12, 2010
                               ___________

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. 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.
  3.  "BLIND"  MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY OF THE
SUSPECT.

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

                                                           LBD17224-03-0

A. 11052--A                         2

  4. "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS,  BUT
DOES NOT KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE EYEWITNESS.
  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 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;
  (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;

A. 11052--A                         3

  (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 UNDULY 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 UNDULY 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;
  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY  ALL  LINEUP  PARTIC-
IPANTS;

A. 11052--A                         4

  (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  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
  (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;

A. 11052--A                         5

  (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
MAY MOVE TO SUPPRESS  EYEWITNESS  IDENTIFICATION  EVIDENCE  PURSUANT  TO
ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.

A. 11052--A                         6

  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.

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Assembly Bill A11052

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

2009-A11052 - Details

2009-A11052 - Summary

2009-A11052 - Sponsor Memo

2009-A11052 - Bill Text download pdf

2009-A11052A (ACTIVE) - Details

2009-A11052A (ACTIVE) - Summary

2009-A11052A (ACTIVE) - Bill Text download pdf

Comments

Assembly Bill A11052

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Sponsored By

O'DONNELL

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

2009-A11052 - Details

2009-A11052 - Summary

2009-A11052 - Sponsor Memo

2009-A11052 - Bill Text download pdf

2009-A11052A (ACTIVE) - Details

2009-A11052A (ACTIVE) - Summary

2009-A11052A (ACTIVE) - Bill Text download pdf

Comments