Bill Text: NY A05317 | 2011-2012 | General Assembly | Introduced
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) 2012-05-24 - advanced to third reading cal.630 [A05317 Detail]
Download: New_York-2011-A05317-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5317
2011-2012 Regular Sessions
I N A S S E M B L Y
February 15, 2011
___________
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:
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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05732-01-1
A. 5317 2
1 3. "BLIND" MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY OF THE
2 SUSPECT.
3 4. "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS, BUT
4 DOES NOT KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE EYEWITNESS.
5 5. "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR NEAR
6 THE SCENE OF AN OFFENSE OR UPON SOME OTHER OCCASION RELEVANT TO THE
7 CASE.
8 6. "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO IS
9 NOT SUSPECTED OF AN OFFENSE AND IS INCLUDED IN AN IDENTIFICATION PROCE-
10 DURE.
11 7. "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP, A PHOTO LINEUP, OR
12 A SHOWUP.
13 8. "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH A GROUP OF
14 PERSONS, INCLUDING THE SUSPECTED PERPETRATOR OF AN OFFENSE AND OTHER
15 PERSONS NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS FOR
16 THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
17 AS THE PERPETRATOR.
18 9. "PHOTO LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN ARRAY
19 OF PHOTOGRAPHS, INCLUDING A PHOTOGRAPH OF THE SUSPECTED PERPETRATOR OF
20 AN OFFENSE AND ADDITIONAL PHOTOGRAPHS OF OTHER PERSONS NOT SUSPECTED OF
21 THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD COPY FORM OR
22 VIA COMPUTER FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDEN-
23 TIFIES THE SUSPECT AS THE PERPETRATOR.
24 10. "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN EYEWITNESS
25 IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
26 ER THE EYEWITNESS IDENTIFIES THIS INDIVIDUAL AS THE PERPETRATOR.
27 S 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
28 1. IF IDENTIFICATION PROCEDURES (A) HAVE BEEN CONDUCTED IN ACCORDANCE
29 WITH THIS SECTION AND UNDER CIRCUMSTANCES CONSISTENT WITH SUCH RIGHTS AS
30 AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS STATE OR OF
31 THE UNITED STATES; AND (B) ARE PROPERLY DOCUMENTED IN ACCORDANCE WITH
32 PARAGRAPHS (T), (U) AND (V) OF SUBDIVISION TWO OF THIS SECTION, TESTIMO-
33 NY MAY BE GIVEN BY A WITNESS THAT HE OR SHE OBSERVED A PERSON OR PHOTO-
34 GRAPH OF A PERSON ON AN OCCASION PRIOR TO HIS OR HER TESTIMONY WHOM HE
35 OR SHE RECOGNIZES AS THE SAME PERSON WHOM HE OR SHE HAD OBSERVED ON THE
36 FIRST OR INCRIMINATING OCCASION.
37 2. ANY CRIMINAL JUSTICE ENTITY CONDUCTING EYEWITNESS IDENTIFICATION
38 PROCEDURES SHALL ADOPT SPECIFIC PROCEDURES FOR CONDUCTING PHOTO AND LIVE
39 LINEUPS THAT COMPLY WITH THE FOLLOWING REQUIREMENTS:
40 (A) PRIOR TO A PHOTO OR LIVE LINEUP, LAW ENFORCEMENT SHALL RECORD AS
41 COMPLETE A DESCRIPTION AS POSSIBLE OF THE PERPETRATOR PROVIDED BY THE
42 EYEWITNESS, IN THE EYEWITNESS'S OWN WORDS. THIS STATEMENT SHALL ALSO
43 INCLUDE INFORMATION REGARDING THE WITNESS'S DEGREE OF ATTENTION DURING
44 THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO VIEW THE PERPETRATOR, AS
45 WELL AS THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERPETRA-
46 TOR, INCLUDING LOCATION, TIME, DISTANCE, OBSTRUCTIONS, LIGHTING, WEATHER
47 CONDITIONS AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO ALCOHOL,
48 DRUGS, STRESS AND VISUAL/AUDITORY DISABILITIES. THE EYEWITNESS ALSO
49 SHALL BE ASKED IF HE OR SHE NEEDS GLASSES OR CONTACT LENSES AND WHETHER
50 HE OR SHE WAS WEARING THEM AT THE TIME OF THE OFFENSE. THE ADMINISTRATOR
51 SHALL NOTE WHETHER THE EYEWITNESS WAS WEARING GLASSES OR CONTACT LENSES
52 AT THE TIME OF THE IDENTIFICATION PROCEDURES;
53 (B) UNLESS IMPRACTICABLE, A BLIND ADMINISTRATOR SHALL CONDUCT THE LIVE
54 OR PHOTO LINEUP;
A. 5317 3
1 (C) WHEN IT IS IMPRACTICABLE FOR A BLIND ADMINISTRATOR TO CONDUCT THE
2 EYEWITNESS IDENTIFICATION PROCEDURE, THE INVESTIGATOR SHALL STATE IN
3 WRITING THE REASON THEREFOR, AND SHALL CONDUCT THE LINEUP BLINDED;
4 (D) THE EYEWITNESS SHALL BE INSTRUCTED, WITHOUT OTHER EYEWITNESSES
5 PRESENT, PRIOR TO ANY LIVE OR PHOTO LINEUP THAT:
6 (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN THE IDEN-
7 TIFICATION PROCEDURE;
8 (II) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;
9 (III) THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
10 TION;
11 (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN IDENTIFICATION
12 IS MADE;
13 (V) THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
14 STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS OF ANY IDEN-
15 TIFICATION; AND
16 (VI) THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
17 ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD NOT
18 SPEAK WITH THE MEDIA;
19 (E) UNLESS IMPRACTICABLE, THE PHOTOGRAPH OF THE SUSPECT USED IN A
20 PHOTO LINEUP SHALL BE CONTEMPORARY AND SHALL RESEMBLE HIS OR HER APPEAR-
21 ANCE AT THE TIME OF THE OFFENSE. WHEN IT IS IMPRACTICABLE, THE INVESTI-
22 GATOR SHALL STATE IN WRITING THE REASON THEREFOR;
23 (F) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
24 GRAPHS THEMSELVES OR THE BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
25 WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS UNDULY STAND OUT;
26 (G) A PHOTO OR LIVE LINEUP SHALL BE COMPOSED SO THAT THE FILLERS
27 GENERALLY RESEMBLE THE EYEWITNESS'S DESCRIPTION OF THE PERPETRATOR,
28 WHILE ENSURING THAT THE SUSPECT DOES NOT UNDULY STAND OUT FROM THE
29 FILLERS;
30 (H) IN A PHOTO OR LIVE LINEUP, FILLERS SHALL POSSESS THE FOLLOWING
31 CHARACTERISTICS:
32 (I) ALL FILLERS SELECTED SHALL RESEMBLE THE EYEWITNESS'S DESCRIPTION
33 OF THE PERPETRATOR IN SIGNIFICANT FEATURES INCLUDING, BUT NOT LIMITED TO
34 FACE, WEIGHT, BUILD AND SKIN TONE, AND INCLUDING ANY UNIQUE OR UNUSUAL
35 FEATURES TO THE EXTENT POSSIBLE INCLUDING, BUT NOT LIMITED TO ANY SCARS
36 OR TATTOOS; IF THE SUSPECT DOES NOT RESEMBLE THE EYEWITNESS'S
37 DESCRIPTION OF THE PERPETRATOR IN SIGNIFICANT FEATURES, THE FILLERS
38 SELECTED SHALL RESEMBLE THE SUSPECT IN SIGNIFICANT FEATURES;
39 (II) AT LEAST FIVE FILLERS SHALL BE INCLUDED IN A PHOTO LINEUP, IN
40 ADDITION TO THE SUSPECT;
41 (III) AT LEAST FOUR FILLERS SHALL BE INCLUDED IN A LIVE LINEUP, IN
42 ADDITION TO THE SUSPECT; AND
43 (IV) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A PHOTO LINEUP OR LIVE
44 LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
45 OF INVOLVEMENT IN THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
46 INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
47 ANY PRIOR LINEUPS;
48 (I) IF THERE ARE MULTIPLE EYEWITNESSES:
49 (I) EACH EYEWITNESS SHALL VIEW PHOTO OR LIVE LINEUPS SEPARATELY;
50 (II) THE SUSPECT SHALL BE PLACED IN A DIFFERENT POSITION IN THE LIVE
51 LINEUP AND/OR PHOTO LINEUP FOR EACH EYEWITNESS; AND
52 (III) THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH EACH
53 OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED;
54 (J) IN AN IDENTIFICATION PROCEDURE, NO WRITINGS OR INFORMATION
55 CONCERNING THE INSTANT OR ANY PREVIOUS ARREST, INDICTMENT OR CONVICTION
56 OF THE SUSPECT SHALL BE VISIBLE OR MADE KNOWN TO THE EYEWITNESS;
A. 5317 4
1 (K) IN A LIVE LINEUP, ANY IDENTIFYING ACTIONS, SUCH AS SPEECH,
2 GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY ALL LINEUP PARTIC-
3 IPANTS;
4 (L) IN A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF VIEW OF
5 THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE;
6 (M) WHEN THERE ARE MULTIPLE SUSPECTS, EACH IDENTIFICATION PROCEDURE
7 SHALL INCLUDE ONLY ONE SUSPECT;
8 (N) NOTHING SHALL BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
9 POSITION IN THE PHOTO OR LIVE LINEUP;
10 (O) NOTHING SHALL BE SAID TO THE EYEWITNESS THAT MIGHT INFLUENCE THE
11 EYEWITNESS'S IDENTIFICATION OF ANY PARTICULAR LINEUP MEMBER;
12 (P) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
13 SEEK AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
14 THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE EYEWIT-
15 NESS'S CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
16 CATION PROCEDURE IS THE PERPETRATOR;
17 (Q) IF THE EYEWITNESS IDENTIFIES A PERSON AS THE PERPETRATOR, THE
18 EYEWITNESS SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON
19 BEFORE THE ADMINISTRATOR OBTAINS THE EYEWITNESS'S CONFIDENCE STATEMENT
20 ABOUT THE SELECTION;
21 (R) A RECORD OF THE IDENTIFICATION PROCEDURE SHALL BE MADE THAT
22 INCLUDES ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED
23 DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES;
24 (S) EFFORTS SHALL BE MADE TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF
25 A SHOWUP. IN ADDITION:
26 (I) SHOWUPS SHALL ONLY BE PERFORMED USING A LIVE SUSPECT AND IN
27 EXIGENT CIRCUMSTANCES THAT REQUIRE THE IMMEDIATE DISPLAY OF A SUSPECT TO
28 AN EYEWITNESS;
29 (II) IN THE EVENT OF THE ADMINISTRATION OF A SHOWUP PROCEDURE:
30 (A) A FULL AND DETAILED DESCRIPTION OF THE PERPETRATOR SHALL BE
31 PROVIDED BY THE EYEWITNESS BEFORE THE EYEWITNESS OBSERVES THE SUSPECT.
32 THIS STATEMENT SHALL ALSO INCLUDE INFORMATION REGARDING THE WITNESS'S
33 DEGREE OF ATTENTION DURING THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO
34 VIEW THE PERPETRATOR, AS WELL AS THE CONDITIONS UNDER WHICH THE EYEWIT-
35 NESS OBSERVED THE PERPETRATOR INCLUDING LOCATION, TIME, DISTANCE,
36 OBSTRUCTIONS, LIGHTING, WEATHER CONDITIONS AND OTHER IMPAIRMENTS,
37 INCLUDING BUT NOT LIMITED TO ALCOHOL, DRUGS, STRESS AND VISUAL/AUDITORY
38 DISABILITIES. THE EYEWITNESS SHALL ALSO BE ASKED IF HE OR SHE NEEDS
39 GLASSES OR CONTACT LENSES AND WHETHER HE OR SHE WAS WEARING THEM AT THE
40 TIME OF THE OFFENSE. THE ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS
41 WAS WEARING GLASSES OR CONTACT LENSES AT THE TIME OF THE IDENTIFICATION
42 PROCEDURE;
43 (B) THE EYEWITNESS SHALL BE TRANSPORTED TO A NEUTRAL, NON-LAW ENFORCE-
44 MENT LOCATION WHERE THE SUSPECT IS BEING DETAINED FOR THE PURPOSES OF A
45 SHOWUP PROCEDURE;
46 (C) EYEWITNESSES SHALL BE PROVIDED WITH INSTRUCTIONS PRIOR TO THE
47 SHOWUP, INCLUDING THAT:
48 (1) THE PERPETRATOR MAY OR MAY NOT BE THE PERSON THAT IS PRESENTED TO
49 THE EYEWITNESS;
50 (2) THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
51 TION;
52 (3) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN IDENTIFICATION
53 IS MADE;
54 (4) THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
55 STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS OF ANY IDEN-
56 TIFICATION; AND
A. 5317 5
1 (5) THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
2 ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD NOT
3 SPEAK WITH THE MEDIA;
4 (D) MEASURES SHALL BE TAKEN BY INVESTIGATORS AT THE SHOWUP, INCLUDING
5 THE ADMINISTRATOR OF THE SHOWUP, TO REDUCE POTENTIALLY DAMAGING OR
6 PREJUDICIAL INFERENCES THAT MAY BE DRAWN BY THE EYEWITNESS, INCLUDING:
7 (1) REFRAINING FROM SUGGESTING, THROUGH STATEMENTS OR NON-VERBAL
8 CONDUCT, THAT THE SUSPECT IS OR MAY BE THE PERPETRATOR OF THE CRIME;
9 (2) REMOVING THE SUSPECT FROM A SQUAD CAR; AND
10 (3) WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE SUSPECT;
11 (E) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A TIME
12 SHALL PARTICIPATE IN THE SHOWUP PROCEDURE. ONLY ONE OF THE EYEWITNESSES
13 SHALL BE PRESENT AT THE LOCATION OF THE SHOWUP PROCEDURE. IF A POSITIVE
14 IDENTIFICATION IS MADE, AND AN ARREST IS JUSTIFIED, ADDITIONAL EYEWIT-
15 NESSES SHALL BE SHOWN LIVE OR PHOTO LINEUPS;
16 (F) IF THERE ARE MULTIPLE SUSPECTS, THESE SUSPECTS SHALL BE SEPARATED
17 AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES; AND
18 (G) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
19 SEEK AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
20 THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE EYEWIT-
21 NESS'S CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
22 CATION PROCEDURE IS THE PERPETRATOR. IF THE EYEWITNESS IDENTIFIES A
23 PERSON AS THE PERPETRATOR, THE EYEWITNESS SHALL NOT BE PROVIDED ANY
24 INFORMATION CONCERNING SUCH PERSON BEFORE THE ADMINISTRATOR OBTAINS THE
25 EYEWITNESS'S CONFIDENCE STATEMENT ABOUT THE SELECTION;
26 (T) UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
27 DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
28 (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED DURING
29 THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
30 EYEWITNESSES' CONFIDENCE STATEMENTS;
31 (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
32 (III) THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
33 (IV) IN A PHOTO OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATIONS OF ANY
34 FILLERS; AND
35 (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF THE LINEUP MEMBERS AND
36 OTHER RELEVANT IDENTIFYING INFORMATION, AND THE SOURCES OF ALL PHOTO-
37 GRAPHS OR PERSONS USED IN THE LINEUP;
38 (U) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE IS IMPRACTICA-
39 BLE, THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT THE REASON THERE-
40 FOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE SHALL BE MADE
41 WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDIVISION.
42 THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTOGRAPHS USED IN
43 A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS USED IN A LIVE
44 LINEUP OR SHOWUP; AND
45 (V) IF BOTH A VIDEO AND AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
46 ARE IMPRACTICABLE, THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT IN
47 WRITING THE REASON THEREFOR, AND A WRITTEN RECORD OF THE LINEUP SHALL BE
48 MADE WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDI-
49 VISION. THE WRITTEN RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTO-
50 GRAPHS USED IN A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS
51 USED IN A LIVE LINEUP OR SHOWUP.
52 S 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
53 FOR ANY PHOTO OR LIVE LINEUP, OR SHOWUP PROCEDURE THAT WAS ADMINIS-
54 TERED AFTER THE DATE UPON WHICH THIS ARTICLE TOOK EFFECT:
55 1. IF LAW ENFORCEMENT OFFICIALS OR PROSECUTING AGENCIES DO NOT
56 SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE DEFENDANT
A. 5317 6
1 MAY MOVE TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE PURSUANT TO
2 ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.
3 2. COURTS SHALL CONSIDER EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF
4 THE PROVISIONS OF SECTION 80.20 OF THIS ARTICLE WHEN ADJUDICATING
5 MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE.
6 3. IN THE EVENT THE COURT MAKES A FINDING OF FACT TO SUPPRESS EYEWIT-
7 NESS IDENTIFICATION EVIDENCE DUE TO A SUBSTANTIAL NON-COMPLIANCE WITH
8 THE PROVISIONS OF THIS ARTICLE, ALL EVIDENCE OF EYEWITNESS IDENTIFICA-
9 TION SHALL BE EXCLUDED IN THE CRIMINAL ACTION PENDING AGAINST THE
10 DEFENDANT.
11 4. IN THE EVENT THE COURT DOES NOT SUPPRESS EYEWITNESS IDENTIFICATION
12 EVIDENCE BUT MAKES A FINDING OF FACT PURSUANT TO SUBDIVISIONS FOUR AND
13 SIX OF SECTION 710.60 OF THIS CHAPTER THAT LAW ENFORCEMENT OFFICIALS OR
14 PROSECUTING AGENCIES FAILED TO SUBSTANTIALLY COMPLY WITH THE PROVISIONS
15 OF THIS ARTICLE, THE COURT SHALL INSTRUCT THE JURY THAT EYEWITNESS IDEN-
16 TIFICATION PROCEDURE REQUIREMENTS AS SET FORTH IN THIS CHAPTER WERE
17 DESIGNED TO REDUCE THE RISK OF MISIDENTIFICATION AND THE JURY MAY
18 CONSIDER CREDIBLE EVIDENCE OF NON-COMPLIANCE WHEN ASSESSING THE RELI-
19 ABILITY OF EYEWITNESS IDENTIFICATIONS.
20 5. IN THE EVENT THE COURT DOES NOT SUPPRESS EYEWITNESS IDENTIFICATION
21 EVIDENCE BUT MAKES A FINDING OF FACT PURSUANT TO SUBDIVISIONS FOUR AND
22 SIX OF SECTION 710.60 OF THIS CHAPTER AND FINDS THAT SUBSTANTIAL
23 NON-COMPLIANCE WITH THE PROVISIONS OF THIS ARTICLE HAVE UNDERMINED THE
24 COURT'S CONFIDENCE IN THE RELIABILITY OF THE EYEWITNESS IDENTIFICATION,
25 THE COURT SHALL ALSO INSTRUCT THE JURY THAT IT SHOULD VIEW THE IDENTIFI-
26 CATION EVIDENCE WITH DISTRUST.
27 S 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
28 THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CREATE, ADMINISTER AND
29 CONDUCT TRAINING PROGRAMS FOR PROFESSIONALS INVOLVED IN LAW ENFORCEMENT,
30 INCLUDING BUT NOT LIMITED TO POLICE AND OTHER LAW ENFORCEMENT OFFICIALS
31 AND RECRUITS, PROSECUTORS, JUDGES AND DEFENSE COUNSEL, REGARDING THE
32 METHODS, TECHNICAL ASPECTS AND SCIENTIFIC FINDINGS REGARDING THE BASIS
33 OF THE EYEWITNESS IDENTIFICATION PRACTICES AND PROCEDURES REFERENCED IN
34 THIS ARTICLE.
35 S 3. Section 60.30 of the criminal procedure law is REPEALED.
36 S 4. This act shall take effect on the one hundred eightieth day after
37 it shall have become a law, and shall apply to all identification proce-
38 dures that take place on or after such date.
