Bill Text: NY A11052 | 2009-2010 | General Assembly | Amended
Bill Title: Establishes identification procedures that shall be used for eyewitnesses including live lineups and photo lineups.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-06-21 - reported referred to rules [A11052 Detail]
Download: New_York-2009-A11052-Amended.html
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:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 60.17 to read as follows:
3 S 60.17 RULES OF EVIDENCE; EXPERT TESTIMONY IN CERTAIN IDENTIFICATION
4 CASES.
5 IN ANY CRIMINAL PROCEEDING IN WHICH EYEWITNESS IDENTIFICATION TESTIMO-
6 NY IS INTRODUCED, OR IN OTHER CASES WHERE THE INTERESTS OF JUSTICE SO
7 REQUIRE, THE COURT MAY ADMIT EXPERT TESTIMONY REGARDING RELEVANT ASPECTS
8 OF IDENTIFICATION PROCEDURES, INCLUDING BUT NOT LIMITED TO FACTORS THAT
9 AFFECT THE RELIABILITY AND ACCURACY OF EYEWITNESS IDENTIFICATION.
10 S 2. The criminal procedure law is amended by adding a new article 80
11 to read as follows:
12 ARTICLE 80
13 IDENTIFICATION PROCEDURES
14 SECTION 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
15 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
16 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
17 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
18 S 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
19 AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
20 MEANINGS:
21 1. "ADMINISTRATOR" MEANS THE PERSON CONDUCTING THE PHOTO OR LIVE LINE-
22 UP.
23 2. "SUSPECT" MEANS THE PERSON BELIEVED BY LAW ENFORCEMENT TO BE THE
24 POSSIBLE PERPETRATOR OF THE CRIME.
25 3. "BLIND" MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY OF THE
26 SUSPECT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17224-03-0
A. 11052--A 2
1 4. "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS, BUT
2 DOES NOT KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE EYEWITNESS.
3 5. "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR NEAR
4 THE SCENE OF AN OFFENSE OR UPON SOME OTHER OCCASION RELEVANT TO THE
5 CASE.
6 6. "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO IS
7 NOT SUSPECTED OF AN OFFENSE AND IS INCLUDED IN AN IDENTIFICATION PROCE-
8 DURE.
9 7. "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP, A PHOTO LINEUP, OR
10 A SHOWUP.
11 8. "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH A GROUP OF
12 PERSONS, INCLUDING THE SUSPECTED PERPETRATOR OF AN OFFENSE AND OTHER
13 PERSONS NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS FOR
14 THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
15 AS THE PERPETRATOR.
16 9. "PHOTO LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN ARRAY
17 OF PHOTOGRAPHS, INCLUDING A PHOTOGRAPH OF THE SUSPECTED PERPETRATOR OF
18 AN OFFENSE AND ADDITIONAL PHOTOGRAPHS OF OTHER PERSONS NOT SUSPECTED OF
19 THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD COPY FORM OR
20 VIA COMPUTER FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDEN-
21 TIFIES THE SUSPECT AS THE PERPETRATOR.
22 10. "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN EYEWITNESS
23 IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
24 ER THE EYEWITNESS IDENTIFIES THIS INDIVIDUAL AS THE PERPETRATOR.
25 S 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
26 1. IF IDENTIFICATION PROCEDURES (A) HAVE BEEN CONDUCTED IN ACCORDANCE
27 WITH THIS SECTION AND UNDER CIRCUMSTANCES CONSISTENT WITH SUCH RIGHTS AS
28 AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS STATE OR OF
29 THE UNITED STATES; AND (B) ARE PROPERLY DOCUMENTED IN ACCORDANCE WITH
30 PARAGRAPHS (T), (U) AND (V) OF SUBDIVISION TWO OF THIS SECTION, TESTIMO-
31 NY MAY BE GIVEN BY A WITNESS THAT HE OR SHE OBSERVED A PERSON OR PHOTO-
32 GRAPH OF A PERSON ON AN OCCASION PRIOR TO HIS OR HER TESTIMONY WHOM HE
33 OR SHE RECOGNIZES AS THE SAME PERSON WHOM HE OR SHE HAD OBSERVED ON THE
34 FIRST OR INCRIMINATING OCCASION.
35 2. ANY CRIMINAL JUSTICE ENTITY CONDUCTING EYEWITNESS IDENTIFICATION
36 PROCEDURES SHALL ADOPT SPECIFIC PROCEDURES FOR CONDUCTING PHOTO AND LIVE
37 LINEUPS THAT COMPLY WITH THE FOLLOWING REQUIREMENTS:
38 (A) PRIOR TO A PHOTO OR LIVE LINEUP, LAW ENFORCEMENT SHALL RECORD AS
39 COMPLETE A DESCRIPTION AS POSSIBLE OF THE PERPETRATOR PROVIDED BY THE
40 EYEWITNESS, IN THE EYEWITNESS'S OWN WORDS. THIS STATEMENT SHALL ALSO
41 INCLUDE INFORMATION REGARDING THE WITNESS'S DEGREE OF ATTENTION DURING
42 THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO VIEW THE PERPETRATOR, AS
43 WELL AS THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERPETRA-
44 TOR, INCLUDING LOCATION, TIME, DISTANCE, OBSTRUCTIONS, LIGHTING, WEATHER
45 CONDITIONS AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO ALCOHOL,
46 DRUGS, STRESS AND VISUAL/AUDITORY DISABILITIES. THE EYEWITNESS ALSO
47 SHALL BE ASKED IF HE OR SHE NEEDS GLASSES OR CONTACT LENSES AND WHETHER
48 HE OR SHE WAS WEARING THEM AT THE TIME OF THE OFFENSE. THE ADMINISTRATOR
49 SHALL NOTE WHETHER THE EYEWITNESS WAS WEARING GLASSES OR CONTACT LENSES
50 AT THE TIME OF THE IDENTIFICATION PROCEDURES;
51 (B) UNLESS IMPRACTICABLE, A BLIND ADMINISTRATOR SHALL CONDUCT THE LIVE
52 OR PHOTO LINEUP;
53 (C) WHEN IT IS IMPRACTICABLE FOR A BLIND ADMINISTRATOR TO CONDUCT THE
54 EYEWITNESS IDENTIFICATION PROCEDURE, THE INVESTIGATOR SHALL STATE IN
55 WRITING THE REASON THEREFOR, AND SHALL CONDUCT THE LINEUP BLINDED;
A. 11052--A 3
1 (D) THE EYEWITNESS SHALL BE INSTRUCTED, WITHOUT OTHER EYEWITNESSES
2 PRESENT, PRIOR TO ANY LIVE OR PHOTO LINEUP THAT:
3 (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN THE IDEN-
4 TIFICATION PROCEDURE;
5 (II) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;
6 (III) THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
7 TION;
8 (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN IDENTIFICATION
9 IS MADE;
10 (V) THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
11 STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS OF ANY IDEN-
12 TIFICATION; AND
13 (VI) THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
14 ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD NOT
15 SPEAK WITH THE MEDIA;
16 (E) UNLESS IMPRACTICABLE, THE PHOTOGRAPH OF THE SUSPECT USED IN A
17 PHOTO LINEUP SHALL BE CONTEMPORARY AND SHALL RESEMBLE HIS OR HER APPEAR-
18 ANCE AT THE TIME OF THE OFFENSE. WHEN IT IS IMPRACTICABLE, THE INVESTI-
19 GATOR SHALL STATE IN WRITING THE REASON THEREFOR;
20 (F) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
21 GRAPHS THEMSELVES OR THE BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
22 WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS UNDULY STAND OUT;
23 (G) A PHOTO OR LIVE LINEUP SHALL BE COMPOSED SO THAT THE FILLERS
24 GENERALLY RESEMBLE THE EYEWITNESS'S DESCRIPTION OF THE PERPETRATOR,
25 WHILE ENSURING THAT THE SUSPECT DOES NOT UNDULY STAND OUT FROM THE
26 FILLERS;
27 (H) IN A PHOTO OR LIVE LINEUP, FILLERS SHALL POSSESS THE FOLLOWING
28 CHARACTERISTICS:
29 (I) ALL FILLERS SELECTED SHALL RESEMBLE THE EYEWITNESS'S DESCRIPTION
30 OF THE PERPETRATOR IN SIGNIFICANT FEATURES INCLUDING, BUT NOT LIMITED TO
31 FACE, WEIGHT, BUILD AND SKIN TONE, AND INCLUDING ANY UNIQUE OR UNUSUAL
32 FEATURES TO THE EXTENT POSSIBLE INCLUDING, BUT NOT LIMITED TO ANY SCARS
33 OR TATTOOS; IF THE SUSPECT DOES NOT RESEMBLE THE EYEWITNESS'S
34 DESCRIPTION OF THE PERPETRATOR IN SIGNIFICANT FEATURES, THE FILLERS
35 SELECTED SHALL RESEMBLE THE SUSPECT IN SIGNIFICANT FEATURES;
36 (II) AT LEAST FIVE FILLERS SHALL BE INCLUDED IN A PHOTO LINEUP, IN
37 ADDITION TO THE SUSPECT;
38 (III) AT LEAST FOUR FILLERS SHALL BE INCLUDED IN A LIVE LINEUP, IN
39 ADDITION TO THE SUSPECT; AND
40 (IV) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A PHOTO LINEUP OR LIVE
41 LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
42 OF INVOLVEMENT IN THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
43 INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
44 ANY PRIOR LINEUPS;
45 (I) IF THERE ARE MULTIPLE EYEWITNESSES:
46 (I) EACH EYEWITNESS SHALL VIEW PHOTO OR LIVE LINEUPS SEPARATELY;
47 (II) THE SUSPECT SHALL BE PLACED IN A DIFFERENT POSITION IN THE LIVE
48 LINEUP AND/OR PHOTO LINEUP FOR EACH EYEWITNESS; AND
49 (III) THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH EACH
50 OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED;
51 (J) IN AN IDENTIFICATION PROCEDURE, NO WRITINGS OR INFORMATION
52 CONCERNING THE INSTANT OR ANY PREVIOUS ARREST, INDICTMENT OR CONVICTION
53 OF THE SUSPECT SHALL BE VISIBLE OR MADE KNOWN TO THE EYEWITNESS;
54 (K) IN A LIVE LINEUP, ANY IDENTIFYING ACTIONS, SUCH AS SPEECH,
55 GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY ALL LINEUP PARTIC-
56 IPANTS;
A. 11052--A 4
1 (L) IN A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF VIEW OF
2 THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE;
3 (M) WHEN THERE ARE MULTIPLE SUSPECTS, EACH IDENTIFICATION PROCEDURE
4 SHALL INCLUDE ONLY ONE SUSPECT;
5 (N) NOTHING SHALL BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
6 POSITION IN THE PHOTO OR LIVE LINEUP;
7 (O) NOTHING SHALL BE SAID TO THE EYEWITNESS THAT MIGHT INFLUENCE THE
8 EYEWITNESS'S IDENTIFICATION OF ANY PARTICULAR LINEUP MEMBER;
9 (P) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
10 SEEK AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
11 THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE EYEWIT-
12 NESS'S CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
13 CATION PROCEDURE IS THE PERPETRATOR;
14 (Q) IF THE EYEWITNESS IDENTIFIES A PERSON AS THE PERPETRATOR, THE
15 EYEWITNESS SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON
16 BEFORE THE ADMINISTRATOR OBTAINS THE EYEWITNESS'S CONFIDENCE STATEMENT
17 ABOUT THE SELECTION;
18 (R) A RECORD OF THE IDENTIFICATION PROCEDURE SHALL BE MADE THAT
19 INCLUDES ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED
20 DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES;
21 (S) EFFORTS SHALL BE MADE TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF
22 A SHOWUP. IN ADDITION:
23 (I) SHOWUPS SHALL ONLY BE PERFORMED USING A LIVE SUSPECT AND IN
24 EXIGENT CIRCUMSTANCES THAT REQUIRE THE IMMEDIATE DISPLAY OF A SUSPECT TO
25 AN EYEWITNESS;
26 (II) IN THE EVENT OF THE ADMINISTRATION OF A SHOWUP PROCEDURE:
27 (A) A FULL AND DETAILED DESCRIPTION OF THE PERPETRATOR SHALL BE
28 PROVIDED BY THE EYEWITNESS BEFORE THE EYEWITNESS OBSERVES THE SUSPECT.
29 THIS STATEMENT SHALL ALSO INCLUDE INFORMATION REGARDING THE WITNESS'S
30 DEGREE OF ATTENTION DURING THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO
31 VIEW THE PERPETRATOR, AS WELL AS THE CONDITIONS UNDER WHICH THE EYEWIT-
32 NESS OBSERVED THE PERPETRATOR INCLUDING LOCATION, TIME, DISTANCE,
33 OBSTRUCTIONS, LIGHTING, WEATHER CONDITIONS AND OTHER IMPAIRMENTS,
34 INCLUDING BUT NOT LIMITED TO ALCOHOL, DRUGS, STRESS AND VISUAL/AUDITORY
35 DISABILITIES. THE EYEWITNESS SHALL ALSO BE ASKED IF HE OR SHE NEEDS
36 GLASSES OR CONTACT LENSES AND WHETHER HE OR SHE WAS WEARING THEM AT THE
37 TIME OF THE OFFENSE. THE ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS
38 WAS WEARING GLASSES OR CONTACT LENSES AT THE TIME OF THE IDENTIFICATION
39 PROCEDURE;
40 (B) THE EYEWITNESS SHALL BE TRANSPORTED TO A NEUTRAL, NON-LAW ENFORCE-
41 MENT LOCATION WHERE THE SUSPECT IS BEING DETAINED FOR THE PURPOSES OF A
42 SHOWUP PROCEDURE;
43 (C) EYEWITNESSES SHALL BE PROVIDED WITH INSTRUCTIONS PRIOR TO THE
44 SHOWUP, INCLUDING THAT:
45 (1) THE PERPETRATOR MAY OR MAY NOT BE THE PERSON THAT IS PRESENTED TO
46 THE EYEWITNESS;
47 (2) THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
48 TION;
49 (3) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN IDENTIFICATION
50 IS MADE;
51 (4) THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
52 STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS OF ANY IDEN-
53 TIFICATION; AND
54 (5) THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
55 ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD NOT
56 SPEAK WITH THE MEDIA;
A. 11052--A 5
1 (D) MEASURES SHALL BE TAKEN BY INVESTIGATORS AT THE SHOWUP, INCLUDING
2 THE ADMINISTRATOR OF THE SHOWUP, TO REDUCE POTENTIALLY DAMAGING OR
3 PREJUDICIAL INFERENCES THAT MAY BE DRAWN BY THE EYEWITNESS, INCLUDING:
4 (1) REFRAINING FROM SUGGESTING, THROUGH STATEMENTS OR NON-VERBAL
5 CONDUCT, THAT THE SUSPECT IS OR MAY BE THE PERPETRATOR OF THE CRIME;
6 (2) REMOVING THE SUSPECT FROM A SQUAD CAR; AND
7 (3) WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE SUSPECT;
8 (E) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A TIME
9 SHALL PARTICIPATE IN THE SHOWUP PROCEDURE. ONLY ONE OF THE EYEWITNESSES
10 SHALL BE PRESENT AT THE LOCATION OF THE SHOWUP PROCEDURE. IF A POSITIVE
11 IDENTIFICATION IS MADE, AND AN ARREST IS JUSTIFIED, ADDITIONAL EYEWIT-
12 NESSES SHALL BE SHOWN LIVE OR PHOTO LINEUPS;
13 (F) IF THERE ARE MULTIPLE SUSPECTS, THESE SUSPECTS SHALL BE SEPARATED
14 AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES; AND
15 (G) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
16 SEEK AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
17 THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE EYEWIT-
18 NESS'S CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
19 CATION PROCEDURE IS THE PERPETRATOR. IF THE EYEWITNESS IDENTIFIES A
20 PERSON AS THE PERPETRATOR, THE EYEWITNESS SHALL NOT BE PROVIDED ANY
21 INFORMATION CONCERNING SUCH PERSON BEFORE THE ADMINISTRATOR OBTAINS THE
22 EYEWITNESS'S CONFIDENCE STATEMENT ABOUT THE SELECTION;
23 (T) UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
24 DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
25 (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED DURING
26 THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
27 EYEWITNESSES' CONFIDENCE STATEMENTS;
28 (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
29 (III) THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
30 (IV) IN A PHOTO OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATIONS OF ANY
31 FILLERS; AND
32 (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF THE LINEUP MEMBERS AND
33 OTHER RELEVANT IDENTIFYING INFORMATION, AND THE SOURCES OF ALL PHOTO-
34 GRAPHS OR PERSONS USED IN THE LINEUP;
35 (U) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE IS IMPRACTICA-
36 BLE, THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT THE REASON THERE-
37 FOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE SHALL BE MADE
38 WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDIVISION.
39 THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTOGRAPHS USED IN
40 A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS USED IN A LIVE
41 LINEUP OR SHOWUP; AND
42 (V) IF BOTH A VIDEO AND AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
43 ARE IMPRACTICABLE, THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT IN
44 WRITING THE REASON THEREFOR, AND A WRITTEN RECORD OF THE LINEUP SHALL BE
45 MADE WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDI-
46 VISION. THE WRITTEN RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTO-
47 GRAPHS USED IN A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS
48 USED IN A LIVE LINEUP OR SHOWUP.
49 S 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
50 FOR ANY PHOTO OR LIVE LINEUP, OR SHOWUP PROCEDURE THAT WAS ADMINIS-
51 TERED AFTER THE DATE UPON WHICH THIS ARTICLE TOOK EFFECT:
52 1. IF LAW ENFORCEMENT OFFICIALS OR PROSECUTING AGENCIES DO NOT
53 SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE DEFENDANT
54 MAY MOVE TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE PURSUANT TO
55 ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.
A. 11052--A 6
1 2. COURTS SHALL CONSIDER EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF
2 THE PROVISIONS OF SECTION 80.20 OF THIS ARTICLE WHEN ADJUDICATING
3 MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE.
4 3. IN THE EVENT THE COURT MAKES A FINDING OF FACT TO SUPPRESS EYEWIT-
5 NESS IDENTIFICATION EVIDENCE DUE TO A SUBSTANTIAL NON-COMPLIANCE WITH
6 THE PROVISIONS OF THIS ARTICLE, ALL EVIDENCE OF EYEWITNESS IDENTIFICA-
7 TION SHALL BE EXCLUDED IN THE CRIMINAL ACTION PENDING AGAINST THE
8 DEFENDANT.
9 4. IN THE EVENT THE COURT DOES NOT SUPPRESS EYEWITNESS IDENTIFICATION
10 EVIDENCE BUT MAKES A FINDING OF FACT PURSUANT TO SUBDIVISIONS FOUR AND
11 SIX OF SECTION 710.60 OF THIS CHAPTER THAT LAW ENFORCEMENT OFFICIALS OR
12 PROSECUTING AGENCIES FAILED TO SUBSTANTIALLY COMPLY WITH THE PROVISIONS
13 OF THIS ARTICLE, THE COURT SHALL INSTRUCT THE JURY THAT EYEWITNESS IDEN-
14 TIFICATION PROCEDURE REQUIREMENTS AS SET FORTH IN THIS CHAPTER WERE
15 DESIGNED TO REDUCE THE RISK OF MISIDENTIFICATION AND THE JURY MAY
16 CONSIDER CREDIBLE EVIDENCE OF NON-COMPLIANCE WHEN ASSESSING THE RELI-
17 ABILITY OF EYEWITNESS IDENTIFICATIONS.
18 5. IN THE EVENT THE COURT DOES NOT SUPPRESS EYEWITNESS IDENTIFICATION
19 EVIDENCE BUT MAKES A FINDING OF FACT PURSUANT TO SUBDIVISIONS FOUR AND
20 SIX OF SECTION 710.60 OF THIS CHAPTER AND FINDS THAT SUBSTANTIAL
21 NON-COMPLIANCE WITH THE PROVISIONS OF THIS ARTICLE HAVE UNDERMINED THE
22 COURT'S CONFIDENCE IN THE RELIABILITY OF THE EYEWITNESS IDENTIFICATION,
23 THE COURT SHALL ALSO INSTRUCT THE JURY THAT IT SHOULD VIEW THE IDENTIFI-
24 CATION EVIDENCE WITH DISTRUST.
25 S 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
26 THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CREATE, ADMINISTER AND
27 CONDUCT TRAINING PROGRAMS FOR PROFESSIONALS INVOLVED IN LAW ENFORCEMENT,
28 INCLUDING BUT NOT LIMITED TO POLICE AND OTHER LAW ENFORCEMENT OFFICIALS
29 AND RECRUITS, PROSECUTORS, JUDGES AND DEFENSE COUNSEL, REGARDING THE
30 METHODS, TECHNICAL ASPECTS AND SCIENTIFIC FINDINGS REGARDING THE BASIS
31 OF THE EYEWITNESS IDENTIFICATION PRACTICES AND PROCEDURES REFERENCED IN
32 THIS ARTICLE.
33 S 3. Section 60.30 of the criminal procedure law is REPEALED.
34 S 4. This act shall take effect on the one hundred eightieth day after
35 it shall have become a law, and shall apply to all identification proce-
36 dures that take place on or after such date.
