NY State Senate Bill 2009-S4292

Senate Bill S4292

2009-2010 Legislative Session

Sets procedures for the conduct of line-ups: only one suspect may be presented at a time, notice to be given to witnesses, grounds for suppression of evidence

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Jun 19, 2009	print number 4292a
Jun 19, 2009	amend (t) and recommit to codes
Apr 21, 2009	referred to codes

Bill Amendments

Original

A (Active)

2009-S4292 - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.78, CP L; add §303.4, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: S1099
2013-2014: S2850

2009-S4292 - Summary

Sets procedures for the conduct of police line-ups: only one suspect (in person or photo) may be presented at a time, notice to be given to witnesses concerning the identification process, and noncompliance alone is not grounds for suppression of evidence; applies in criminal and juvenile delinquency cases.

2009-S4292 - Sponsor Memo

                                 BILL NUMBER:  S4292

 TITLE OF BILL :
An act to amend the criminal procedure law and the family court act,
in relation to the conduct of police line-ups


 PURPOSE OR GENERAL IDEA :
To incorporate photo and live lineup identification procedures for law
enforcement agencies.

 EXISTING LAW THE BILL WOULD ALTER :
Adds a section 240.41 to the criminal procedure law and a new section
331.8 to the family court act.

 SUMMARY OF PROVISIONS :
Adds a section 240.41 to the criminal procedure law and a new section
331.8 to the family court act that:

Requires witnesses in photo and live police lineups to be notified
that during such procedure there is no requirement to actually
identify any persons shown; it is possible none of the persons shown
were involved in the crime, and; experience has shown some eye-witness
identifications are sometimes inaccurate.  The bill requires the
witness to sign an affirmation of understanding of such notification.

The bill outlines requirements for composing photo lineups, requiring
persons doing so to:

* include only one photo of the suspect in each identification
procedure

* present photos sequentially (one at a time)

* select photo "fillers" (non-suspects) that generally fit the witness
description

* to the extent possible, select a photo of the suspect that generally
resembles the suspect at the time of the crime

* include a minimum of 5 photo fillers in the procedure

* change the order of the photo array if there are multiple witnesses

* not reuse photo fillers when there are multiple suspects

* ensure no information regarding a suspect's previous criminal
activity

* is present at the viewing

* view the array prior to the procedure to ensure the suspect does not
unduly stand out

* preserve the photo array for evidentiary purposes

The bill requires persons conducting photo lineups to:

* provide viewing instructions to the witness: the photos will be
viewed sequentially; they are in random order; take as much time as
needed to make a decision before moving on to the next; the procedure
will be stopped if an identification is made OR all photos will be
shown even if an identification is made (consistent with
jurisdictional procedures) and; you may not return to a previously
viewed photo.

* confirm the witness understands the viewing instructions

* present photos sequentially (one at a time)

* not report any information regarding an individual affirmed by the
witness prior to obtaining a witness statement of certainty

* avoid saying, gesturing, or inferring anything to the witness that
may influence the witness' decision

* prepare a record of the proceedings

* instruct the witness not to discuss the results with others involved
with the case, and discourage discussing the results with others
including the media

* The bill requires persons composing a live (in-person) lineup shall:

* include only one suspect per procedure

* select live "fillers" (non-suspects) who generally resemble the
suspect

* place the suspect in different sequence in subsequent lineups when
there are multiple witnesses

* include a minimum of four live fillers

* do not use live fillers in subsequent lineups where there are
multiple suspects

* ensure no information regarding a suspect's previous criminal
activity is present at the viewing

* view the composition of the live lineup prior to the identification
procedure to ensure the suspect does not unduly stand out

* document the order of the lineup

* Persons conducting a live lineup shall: provide viewing instructions
to the witness; individuals will be viewed sequentially; individuals
are in random order; take as much time as needed before moving on to
the next individual and; the procedure will be stopped if an
identification is made OR all individuals will be shown even if an
identification is made (consistent with jurisdictional procedures)

* confirm the witness understands the nature of the lineup procedure

* ensure the lineup participants, other than the individual being
viewed, are out of the view of the witness

* instruct the live fillers to avoid saying, gesturing, or inferring
anything to the witness that may suggest the identity of the suspect

* not report any information regarding an individual affirmed by the
witness prior to obtaining a witness statement of certainty

* avoid saying, gesturing, or inferring anything to the witness that
may influence the witness' decision

* prepare a record of the proceedings

* instruct the witness not to discuss the results with others involved
with the case, and discourage discussing the results with others
including the media

* if possible, document the live lineup participants by photographs or
video, individually or in a group, in a quality that represents the
group clearly and fairly and enter same in the record of
identification proceedings

The bill also requires a complete and accurate account be documented
of each identification procedure, including the witness statement of
certainty if an affirmative identification is made.

 JUSTIFICATION :

I. Erosion of Utility of Eyewitness Identification Evidence

Eyewitness identification evidence is often crucial to identifying and
prosecuting criminals and exonerating the innocent. Over a number of
years however, extensive research has examined the credibility of
eyewitness identifications and, through the use of DNA evidence, has
concluded that this type of evidence is not foolproof.

In recent years, this has become clearer with advances in DNA research
and scores of exoneration cases through DNA testing.

II. University Studies

Researchers from the Ohio State University, Iowa State University,
University of Texas at El Paso, State University of New York at
Plattsburgh, University of Nebraska, and Queen's University in
Ontario, combined, have been conducting studies on witness memory,
police interview techniques, and DNA exoneration cases for well over
20 years.

One such study by Iowa State University in 1998 shows 90% of DNA
exoneration cases involve one or more mistaken eyewitness
identifications. Additionally, a 1996 U.S. Justice Department study of
sexual assault exoneration cases found that of 28 men exonerated by
DNA evidence, each was convicted after eyewitnesses positively
identified them.

III. Government Actions

In October 1999, the U.S. Department of Justice published  EYEWITNESS
EVIDENCE: A GUIDE FOR LAW ENFORCEMENT , a document that provides law
enforcement agencies eyewitness identification guidelines based on the
abovementioned research and research conducted by their own internal
staff.

In April of 2001, the Attorney General of the State of New Jersey
directed all New Jersey police agencies to implement eyewitness
identification procedures adopted from these recommendations by the
U.S. Justice Department, making New Jersey the first state in the
Nation to adopt the Federal guidelines.

New Jersey is unlike most other states in that the Attorney General
has the authority to implement uniform witness identification
procedures on a statewide basis. In New York State's sprawling, less
centralized law enforcement system the Attorney General does not have
such authority and, thus, such changes to statewide identification
procedures would most aptly be accomplished by an act of the
Legislature.

IV. New York Caselaw

The reliability of eyewitness identifications in New York case law
began eroding in 2001. In May of2001, the New York State Court of
Appeals ruled (State v. Lee, No. 57 Court of Appeals of New York 96

N.Y.2d 157) that expert testimony on the reliability of eyewitnesses
"is not inadmissible, per se" and may be admitted at trial.

For years, New York trial judges have kept experts on eyewitness
identification off the stand using a longstanding legal tradition that
jurors are already equipped to make an informed judgment through
experience and common sense to consider a witness' reliability. See,
e.g.,  THE ADMISSIBILITY OF EXPERT IDENTIFICATION TESTIMONY IN NEW
YORK COURTS ACCORDING TO PEOPLE V.  LEE , 12 Temp. Pol. & Civ. Rts. L.
Rev. 231 (2002);  RETHINKING THE ROLE OF EXPERT TESTIMONY REGARDING
THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS IN NEW YORK , 48 N.Y.L.
Sch. L. Rev.  323 (2004);  CAN A JURY BELIEVE MY EYES, AND SHOULD
COURTS LET EXPERTS TELL THEM WHY NOT:  THE ADMISSIBILITY OF EXPERT
TESTIMONY ON CROSS-RACIAL EYEWITNESS IDENTIFICATION IN NEW YORK AFTER
PEOPLE V. YOUNG , 27 Pace L. Rev. 433 (2007).

Trial judges have also maintained this tradition simply because
appellate courts before 2001 avoided taking a position. However, in
light of the 2001 Lee decision, and subsequent Court of Appeals
decisions, testimony that calls lineups into question may now be
allowed, and the need for proper eyewitness identification procedures
that can stand up in court is clear. This is particularly shown in
cases such as  PEOPLE V. LEGRAND , 8 N.Y. 3d 449,452 (2007), the Court
of Appeals found that:

"it is clear that expert testimony regarding the factors that affect
the accuracy of eyewitness identifications, in the appropriate case,
may be admissible in the exercise of a court's discretion. Moreover,
there are cases in which it would be an abuse of a court's discretion
to exclude expert testimony on the reliability of eyewitness
identifications."

Thus, there are justifications for this bill on several fronts. This
legislation would implement Federal recommendations for police line-up
procedures based on years of research; establish congruent police
line-up procedures with our sister state of New Jersey; provide the
authority for the State Justice Department to implement uniform
line-up procedures on a State-wide basis; and provide clear, complete,
and scientifically-based line-up procedures that are now subject to a
higher condition of scrutiny by our State's court system.

 PRIOR LEGISLATIVE HISTORY :
A.9578-A (2001-02)
A.634 (2003-04)
A.772 (2005-06)
A.925 (2007-2008).

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT :
Minimal.

 EFFECTIVE DATE :
This act shall take effect 180 days after it shall have become a law.

2009-S4292 - Bill Text download pdf

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

                                  4292

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 21, 2009
                               ___________

Introduced  by  Sen.  PARKER -- 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 the conduct of police line-ups

  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 240.41 to read as follows:
S 240.41 DISCOVERY; POLICE LINE-UPS.
  1. DEFINITIONS.
  (A)  "LIVE  POLICE  LINE-UP"  OR "LIVE LINE-UP" MEANS ANY DISPLAY TO A
WITNESS FOR PURPOSES OF IDENTIFICATION OF ANY SUSPECT  OR  OTHER  PERSON
WHERE SUCH SUSPECT OR OTHER PERSON IS ACTUALLY PRESENT.
  (B)  "PHOTO  POLICE LINE-UP" OR "PHOTO LINE-UP" MEANS ANY DISPLAY TO A
WITNESS FOR PURPOSES OF IDENTIFICATION OF ANY PHOTOGRAPH OR OTHER GRAPH-
IC LIKENESS OF A SUSPECT OR OTHER PERSON.
  (C) "PHOTO FILLER" MEANS ANY  PHOTOGRAPH  OR  GRAPHIC  LIKENESS  OF  A
PERSON USED IN A PHOTO LINE-UP WHO IS NEITHER THE SUSPECT NOR ANY INVES-
TIGATOR ASSIGNED TO THE CASE.
  (D)  "LIVE  FILLER"  MEANS A PERSON WHO PARTICIPATES IN A LIVE LINE-UP
WHO IS NEITHER THE SUSPECT NOR ANY INVESTIGATOR ASSIGNED TO THE CASE.
  2. PRIOR TO THE CONDUCT OF A  LIVE  LINE-UP  OR  PHOTO  LINE-UP,  EACH
WITNESS  SHALL  BE  INFORMED  OF  THE  FOLLOWING,  IN PLAIN LANGUAGE, IN
SUBSTANTIALLY THE FOLLOWING FORM:
  (A) YOU ARE NOT REQUIRED TO IDENTIFY ANY PERSON SHOWN TO YOU.
  (B) IT IS POSSIBLE THAT NONE OF THE PERSONS ABOUT TO BE SHOWN  TO  YOU
WERE INVOLVED IN THE CRIME.
  (C)  EXPERIENCE  HAS  SHOWN THAT EYE-WITNESS IDENTIFICATIONS ARE SOME-
TIMES INACCURATE.
  3. PERSONS CONDUCTING PHOTO LINE-UPS OR LIVE LINE-UPS, OR BOTH,  SHALL
OBTAIN  FROM  EACH  WITNESS  A WRITTEN, SIGNED, AND DATED AFFIRMATION OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07326-01-9

S. 4292                             2

UNDERSTANDING AS TO THE PROVISIONS OF SUBDIVISION TWO OF  THIS  SECTION,
AND  SUCH AFFIRMATION SHALL BE ENTERED INTO THE RECORD OF IDENTIFICATION
PROCEEDINGS PURSUANT TO SUBDIVISION NINE OF THIS SECTION.
  4.  THE  COMPOSITION  OF A PHOTO LINE-UP OR LIVE LINE-UP SHALL BE SUCH
THAT THE SUSPECT OR OTHER PERSON DOES NOT UNDULY STAND OUT.
  5. PERSONS COMPOSING A PHOTO LINE-UP SHALL:
  (A) INCLUDE ONLY ONE PHOTO  OF  THE  SUSPECT  IN  EACH  IDENTIFICATION
PROCEDURE;
  (B) PRESENT PHOTOS TO A WITNESS SEQUENTIALLY, ONE AT A TIME, SUCH THAT
ONLY ONE PHOTO IS VISIBLE TO THE WITNESS AT ANY ONE TIME;
  (C)  SELECT PHOTO FILLERS THAT GENERALLY FIT THE WITNESS'S DESCRIPTION
OF THE PERPETRATOR OR OTHER PERSON; OR, WHERE A WITNESS'S DESCRIPTION OF
A PERPETRATOR OR OTHER PERSON  IS  LIMITED  OR  INADEQUATE,  OR  DIFFERS
SIGNIFICANTLY FROM THE APPEARANCE OF THE SUSPECT OR OTHER PERSON, SELECT
PHOTO FILLERS THAT GENERALLY RESEMBLE THE SUSPECT OR OTHER PERSON;
  (D)  IF  MULTIPLE  PHOTOS  OF A SUSPECT OR OTHER PERSON ARE AVAILABLE,
SELECT  A  PHOTO  THAT  RESEMBLES  THE  SUSPECT'S  OR   OTHER   PERSON'S
DESCRIPTION OR APPEARANCE AT THE TIME OF THE INCIDENT;
  (E)  INCLUDE A MINIMUM OF FIVE PHOTO FILLERS PER IDENTIFICATION PROCE-
DURE;
  (F) WHEN CONDUCTING MORE THAN ONE PHOTO LINE-UP IN  A  CASE  INVOLVING
MULTIPLE  WITNESSES,  PRESENT THE SUSPECT'S OR OTHER PERSON'S PHOTO IN A
DIFFERENT SEQUENCE IN EACH SUBSEQUENT PHOTO LINE-UP;
  (G) NOT REUSE PHOTO FILLERS WHEN PRESENTING THE SAME  WITNESS  SUCCES-
SIVE PHOTO LINE-UPS OF DIFFERENT SUSPECTS OR OTHER PERSONS;
  (H) ENSURE THROUGHOUT THE IDENTIFICATION PROCEDURE THAT NO INFORMATION
CONCERNING  A SUSPECT'S OR OTHER PERSON'S PREVIOUS ARRESTS OR VIOLATIONS
IS VISIBLE TO THE WITNESS;
  (I) VIEW THE PHOTO ARRAY PRIOR  TO  THE  IDENTIFICATION  PROCEDURE  TO
ENSURE THAT THE SUSPECT OR OTHER PERSON DOES NOT UNDULY STAND OUT;
  (J)  PRESERVE  THE  PRESENTATION ORDER OF THE PHOTO ARRAY AND PRESERVE
THE PHOTOS IN THEIR ORIGINAL CONDITION FOR EVIDENTIARY PURPOSES.
  6. PERSONS COMPOSING A LIVE LINE-UP SHALL:
  (A) INCLUDE ONLY ONE SUSPECT OR OTHER PERSON PER IDENTIFICATION PROCE-
DURE;
  (B) SELECT LIVE FILLERS WHO GENERALLY FIT THE WITNESS'S DESCRIPTION OF
THE PERPETRATOR OR OTHER PERSON; OR, WHERE A WITNESS'S DESCRIPTION OF  A
PERPETRATOR OR OTHER PERSON IS LIMITED OR INADEQUATE, OR DIFFERS SIGNIF-
ICANTLY  FROM THE APPEARANCE OF THE SUSPECT OR OTHER PERSON, SELECT LIVE
FILLERS THAT, TO THE EXTENT POSSIBLE,  RESEMBLE  THE  SUSPECT  OR  OTHER
PERSON IN SIGNIFICANT FEATURES;
  (C)  WHEN  CONDUCTING  MORE  THAN ONE LIVE LINE-UP IN A CASE INVOLVING
MULTIPLE WITNESSES, PLACE THE SUSPECT OR OTHER  PERSON  IN  A  DIFFERENT
SEQUENCE IN EACH SUBSEQUENT LIVE LINE-UP;
  (D)  INCLUDE  A MINIMUM OF FOUR LIVE FILLERS PER IDENTIFICATION PROCE-
DURE;
  (E) NOT USE LIVE FILLERS SHOWN TO THE SAME WITNESS IN A PREVIOUS IDEN-
TIFICATION PROCEDURE;
  (F) ENSURE THROUGHOUT THE IDENTIFICATION PROCEDURE THAT NO INFORMATION
CONCERNING A SUSPECT'S OR OTHER PERSON'S PREVIOUS ARRESTS OR  VIOLATIONS
IS VISIBLE TO THE WITNESS;
  (G)  VIEW THE COMPOSITION OF THE LIVE LINE-UP PRIOR TO THE IDENTIFICA-
TION PROCEDURE TO ENSURE THAT THE SUSPECT OR OTHER PERSON DOES NOT UNDU-
LY STAND OUT;

S. 4292                             3

  (H) RECORD THE ORDER OF EACH INDIVIDUAL IN THE LINE-UP AND ENTER  SUCH
ORDER  IN  THE RECORD OF IDENTIFICATION PROCEEDINGS PURSUANT TO SUBDIVI-
SION NINE OF THIS SECTION.
  7. PERSONS CONDUCTING A PHOTO LINE-UP SHALL:
  (A) PROVIDE THE FOLLOWING VIEWING INSTRUCTIONS TO THE WITNESS IN PLAIN
LANGUAGE,  IN  SUBSTANTIALLY  THE  FOLLOWING  FORM, PRIOR TO SHOWING THE
PHOTO ARRAY: (I) INDIVIDUAL PHOTOGRAPHS SHALL  BE  VIEWED  SEQUENTIALLY,
ONE  AT  A TIME; (II) THE PHOTOS ARE IN RANDOM ORDER; (III) TAKE AS MUCH
TIME AS NEEDED FOR MAKING A DECISION ABOUT EACH PHOTO BEFORE  MOVING  ON
TO  THE NEXT; (IV) CONSISTENT WITH DEPARTMENTAL OR JURISDICTIONAL PROCE-
DURES, ALL PHOTOS WILL BE SHOWN EVEN IF AN IDENTIFICATION IS MADE  PRIOR
TO VIEWING ALL PHOTOS, OR; THE PROCEDURE WILL BE STOPPED AT THE POINT OF
AN IDENTIFICATION; (V) YOU MAY NOT RETURN TO A PREVIOUSLY VIEWED PHOTO;
  (B)  CONFIRM THAT THE WITNESS UNDERSTANDS THE NATURE OF THE SEQUENTIAL
PROCEDURE;
  (C) PRESENT EACH PHOTO TO THE  WITNESS  SEQUENTIALLY,  REMOVING  THOSE
PREVIOUSLY VIEWED BEFORE PRESENTING THE NEXT;
  (D)  ENSURE  THAT  THE WITNESS DOES NOT WRITE OR MARK ON ANY MATERIALS
THAT MAY BE USED IN SUBSEQUENT IDENTIFICATION PROCEDURES;
  (E)  ENSURE  THAT  NO  MATERIALS  INDICATING  PREVIOUS  IDENTIFICATION
RESULTS ARE VISIBLE TO THE WITNESS;
  (F)  PRIOR  TO  OBTAINING  THE  WITNESS'S  STATEMENT OF CERTAINTY, NOT
REPORT TO THE WITNESS ANY INFORMATION REGARDING AN  INDIVIDUAL  AFFIRMA-
TIVELY IDENTIFIED BY THE WITNESS;
  (G)  AVOID SAYING, GESTURING, OR IMPLYING ANYTHING TO THE WITNESS THAT
MAY INFLUENCE THE WITNESS'S SELECTION;
  (H) PREPARE A RECORD OF IDENTIFICATION PROCEDURES PURSUANT TO SUBDIVI-
SION NINE OF THIS SECTION,  INCLUDING,  BUT  NOT  LIMITED  TO:  DETAILED
RESULTS  OF  THE IDENTIFICATION PROCEDURE, SOURCES OF PHOTOS USED, NAMES
OF ALL PERSONS PRESENT AT THE PHOTO LINE-UP, AND THE DATE  AND  TIME  OF
THE IDENTIFICATION PROCEDURE;
  (I)  INSTRUCT  THE WITNESS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE
OR RESULTS WITH OTHER WITNESSES INVOLVED IN THE CASE AND DISCOURAGE  THE
WITNESS  FROM  DISCUSSING  THE RESULTS WITH ANY OTHER PERSONS, INCLUDING
THE MEDIA.
  8. PERSONS CONDUCTING A LIVE LINE-UP SHALL:
  (A) PROVIDE THE FOLLOWING VIEWING INSTRUCTIONS TO THE WITNESS IN PLAIN
LANGUAGE, IN SUBSTANTIALLY THE FOLLOWING FORM, PRIOR TO THE  LIVE  LINE-
UP:    (I)  INDIVIDUALS WILL BE VIEWED SEQUENTIALLY, ONE AT A TIME; (II)
INDIVIDUALS ARE IN RANDOM ORDER; (III) TAKE AS MUCH TIME AS  NEEDED  FOR
MAKING  A DECISION ABOUT EACH INDIVIDUAL BEFORE MOVING TO THE NEXT; (IV)
CONSISTENT WITH DEPARTMENTAL OR JURISDICTIONAL PROCEDURES, ALL  INDIVID-
UALS WILL BE PRESENTED EVEN IF AN IDENTIFICATION IS MADE, OR; THE PROCE-
DURE WILL BE STOPPED AT THE POINT OF AN IDENTIFICATION;
  (B)  CONFIRM THAT THE WITNESS UNDERSTANDS THE NATURE OF THE SEQUENTIAL
PROCEDURE;
  (C) ENSURE THAT ALL LIVE LINE-UP PARTICIPANTS, OTHER THAN THE INDIVID-
UAL BEING VIEWED, ARE OUT OF THE VIEW OF THE WITNESS;
  (D) PRESENT INDIVIDUALS IN THE LIVE LINE-UP SEPARATELY AND IN  SEQUEN-
TIAL ORDER;
  (E)  AVOID SAYING, GESTURING, OR IMPLYING ANYTHING TO THE WITNESS THAT
MAY INFLUENCE THE WITNESS'S SELECTION;
  (F) INSTRUCT THE LIVE FILLERS TO AVOID SAYING, GESTURING, OR  IMPLYING
ANYTHING TO THE WITNESS THAT MAY SUGGEST THE POSITION OR IDENTITY OF THE
SUSPECT OR OTHER PERSON;

S. 4292                             4

  (G)  PRIOR  TO  OBTAINING  THE  WITNESS'S  STATEMENT OF CERTAINTY, NOT
REPORT TO THE WITNESS ANY INFORMATION REGARDING AN  INDIVIDUAL  AFFIRMA-
TIVELY IDENTIFIED BY THE WITNESS;
  (H)  IF  POSSIBLE, DOCUMENT THE LINE-UP PARTICIPANTS BY PHOTOGRAPHS OR
VIDEO, INDIVIDUALLY OR IN A GROUP, IN  A  QUALITY  THAT  REPRESENTS  THE
GROUP CLEARLY AND FAIRLY, AND ENTER SAME IN THE RECORD OF IDENTIFICATION
PROCEEDINGS;
  (I) PREPARE A RECORD OF IDENTIFICATION PROCEDURES PURSUANT TO SUBDIVI-
SION  NINE  OF  THIS  SECTION,  INCLUDING,  BUT NOT LIMITED TO: DETAILED
RESULTS OF THE IDENTIFICATION PROCEDURE, NAMES OF ALL PERSONS PRESENT AT
THE LIVE LINE-UP, AND THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
  (J) INSTRUCT THE WITNESS NOT TO DISCUSS THE  IDENTIFICATION  PROCEDURE
OR  RESULTS WITH OTHER WITNESSES INVOLVED IN THE CASE AND DISCOURAGE THE
WITNESS FROM DISCUSSING THE RESULTS WITH ANY  OTHER  PERSONS,  INCLUDING
THE MEDIA;
  (K)  ENSURE  THAT  THE WITNESS DOES NOT WRITE OR MARK ON ANY MATERIALS
THAT MAY BE USED IN SUBSEQUENT IDENTIFICATION PROCEDURES;
  (L)  ENSURE  THAT  NO  MATERIALS  INDICATING  PREVIOUS  IDENTIFICATION
RESULTS ARE VISIBLE TO THE WITNESS.
  9.  PERSONS CONDUCTING A PHOTO LINE-UP OR LIVE LINE-UP SHALL PREPARE A
COMPLETE AND ACCURATE DOCUMENTARY RECORD OF EACH PROCEEDING, SIGNED  AND
DATED  BY  THE WITNESS, INCLUDING, BUT NOT LIMITED TO, IDENTIFICATION OR
NON-IDENTIFICATION RESULTS AND ANY OTHER REQUIRED  INFORMATION  PURSUANT
TO STATUTORY AND JURISDICTIONAL REQUIREMENTS.
  10.  IF  AN AFFIRMATIVE IDENTIFICATION IS MADE IN A PHOTO LINE-UP OR A
LIVE LINE-UP PROCEDURE, THE WITNESS SHALL SIGN AND DATE A  STATEMENT  OF
CERTAINTY,  CONSISTENT WITH JURISDICTIONAL PROCEDURES. SUCH STATEMENT OF
CERTAINTY SHALL INCLUDE, BUT MAY NOT BE LIMITED TO, A GENERAL  STATEMENT
IN  THE  WITNESS'S  WORDS  OF  HOW CERTAIN HE OR SHE IS IN REGARD TO THE
AFFIRMATIVE IDENTIFICATION.
  11. NONCOMPLIANCE WITH THE PROVISIONS OF THIS SECTION SHALL NOT  ALONE
BE GROUNDS FOR THE SUPPRESSION OF EVIDENCE.
  S  2. The family court act is amended by adding a new section 331.8 to
read as follows:
  S 331.8.  DISCOVERY; POLICE LINE-UPS.  1. DEFINITIONS.
  (A) "LIVE POLICE LINE-UP" OR "LIVE LINE-UP" MEANS  ANY  DISPLAY  TO  A
WITNESS  FOR  PURPOSES  OF IDENTIFICATION OF ANY SUSPECT OR OTHER PERSON
WHERE SUCH SUSPECT OR OTHER PERSON IS ACTUALLY PRESENT.
  (B) "PHOTO POLICE LINE-UP" OR "PHOTO LINE-UP" MEANS ANY DISPLAY  TO  A
WITNESS FOR PURPOSES OF IDENTIFICATION OF ANY PHOTOGRAPH OR OTHER GRAPH-
IC LIKENESS OF A SUSPECT OR OTHER PERSON.
  (C)  "PHOTO  FILLER"  MEANS  ANY  PHOTOGRAPH  OR GRAPHIC LIKENESS OF A
PERSON USED IN A PHOTO LINE-UP WHO IS NEITHER THE SUSPECT NOR ANY INVES-
TIGATOR ASSIGNED TO THE CASE.
  (D) "LIVE FILLER" MEANS A PERSON WHO PARTICIPATES IN  A  LIVE  LINE-UP
WHO IS NEITHER THE SUSPECT NOR ANY INVESTIGATOR ASSIGNED TO THE CASE.
  2.  PRIOR  TO  THE  CONDUCT  OF  A LIVE LINE-UP OR PHOTO LINE-UP, EACH
WITNESS SHALL BE INFORMED  OF  THE  FOLLOWING,  IN  PLAIN  LANGUAGE,  IN
SUBSTANTIALLY THE FOLLOWING FORM:
  (A) YOU ARE NOT REQUIRED TO IDENTIFY ANY PERSON SHOWN TO YOU.
  (B)  IT  IS POSSIBLE THAT NONE OF THE PERSONS ABOUT TO BE SHOWN TO YOU
WERE INVOLVED IN THE CRIME.
  (C) EXPERIENCE HAS SHOWN THAT EYE-WITNESS  IDENTIFICATIONS  ARE  SOME-
TIMES INACCURATE.
  3.  PERSONS CONDUCTING PHOTO LINE-UPS OR LIVE LINE-UPS, OR BOTH, SHALL
OBTAIN FROM EACH WITNESS A WRITTEN, SIGNED,  AND  DATED  AFFIRMATION  OF

S. 4292                             5

UNDERSTANDING  AS  TO THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
AND SUCH AFFIRMATION SHALL BE ENTERED INTO THE RECORD OF  IDENTIFICATION
PROCEEDINGS PURSUANT TO SUBDIVISION NINE OF THIS SECTION.
  4.  THE  COMPOSITION  OF A PHOTO LINE-UP OR LIVE LINE-UP SHALL BE SUCH
THAT THE SUSPECT OR OTHER PERSON DOES NOT UNDULY STAND OUT.
  5. PERSONS COMPOSING A PHOTO LINE-UP SHALL:
  (A) INCLUDE ONLY ONE PHOTO OF THE SUSPECT  OR  OTHER  PERSON  IN  EACH
IDENTIFICATION PROCEDURE;
  (B) PRESENT PHOTOS TO A WITNESS SEQUENTIALLY, ONE AT A TIME, SUCH THAT
ONLY ONE PHOTO IS VISIBLE TO THE WITNESS AT ANY ONE TIME;
  (C)  SELECT PHOTO FILLERS THAT GENERALLY FIT THE WITNESS'S DESCRIPTION
OF THE PERPETRATOR OR OTHER PERSON; OR, WHERE A WITNESS'S DESCRIPTION OF
A PERPETRATOR OR OTHER PERSON  IS  LIMITED  OR  INADEQUATE,  OR  DIFFERS
SIGNIFICANTLY FROM THE APPEARANCE OF THE SUSPECT OR OTHER PERSON, SELECT
PHOTO FILLERS THAT GENERALLY RESEMBLE THE SUSPECT OR OTHER PERSON;
  (D)  IF  MULTIPLE  PHOTOS  OF A SUSPECT OR OTHER PERSON ARE AVAILABLE,
SELECT  A  PHOTO  THAT  RESEMBLES  THE  SUSPECT'S  OR   OTHER   PERSON'S
DESCRIPTION OR APPEARANCE AT THE TIME OF THE INCIDENT;
  (E)  INCLUDE A MINIMUM OF FIVE PHOTO FILLERS PER IDENTIFICATION PROCE-
DURE;
  (F) WHEN CONDUCTING MORE THAN ONE PHOTO LINE-UP IN  A  CASE  INVOLVING
MULTIPLE  WITNESSES,  PRESENT THE SUSPECT'S OR OTHER PERSON'S PHOTO IN A
DIFFERENT SEQUENCE IN EACH SUBSEQUENT PHOTO LINE-UP;
  (G) NOT REUSE PHOTO FILLERS WHEN PRESENTING THE SAME  WITNESS  SUCCES-
SIVE PHOTO LINE-UPS OF DIFFERENT SUSPECTS OR OTHER PERSONS;
  (H) ENSURE THROUGHOUT THE IDENTIFICATION PROCEDURE THAT NO INFORMATION
CONCERNING  A SUSPECT'S OR OTHER PERSON'S PREVIOUS ARRESTS OR VIOLATIONS
IS VISIBLE TO THE WITNESS;
  (I) VIEW THE PHOTO ARRAY PRIOR  TO  THE  IDENTIFICATION  PROCEDURE  TO
ENSURE THAT THE SUSPECT OR OTHER PERSON DOES NOT UNDULY STAND OUT;
  (J)  PRESERVE  THE  PRESENTATION ORDER OF THE PHOTO ARRAY AND PRESERVE
THE PHOTOS IN THEIR ORIGINAL CONDITION FOR EVIDENTIARY PURPOSES.
  6. PERSONS COMPOSING A LIVE LINE-UP SHALL:
  (A) INCLUDE ONLY ONE SUSPECT OR OTHER PERSON PER IDENTIFICATION PROCE-
DURE;
  (B) SELECT LIVE FILLERS WHO GENERALLY FIT THE WITNESS'S DESCRIPTION OF
THE PERPETRATOR OR OTHER PERSON; OR, WHERE A WITNESS'S DESCRIPTION OF  A
PERPETRATOR OR OTHER PERSON IS LIMITED OR INADEQUATE, OR DIFFERS SIGNIF-
ICANTLY  FROM THE APPEARANCE OF THE SUSPECT OR OTHER PERSON, SELECT LIVE
FILLERS THAT, TO THE EXTENT POSSIBLE,  RESEMBLE  THE  SUSPECT  OR  OTHER
PERSON IN SIGNIFICANT FEATURES;
  (C)  WHEN  CONDUCTING  MORE  THAN ONE LIVE LINE-UP IN A CASE INVOLVING
MULTIPLE WITNESSES, PLACE THE SUSPECT OR OTHER  PERSON  IN  A  DIFFERENT
SEQUENCE IN EACH SUBSEQUENT LIVE LINE-UP;
  (D)  INCLUDE  A MINIMUM OF FOUR LIVE FILLERS PER IDENTIFICATION PROCE-
DURE;
  (E) NOT USE LIVE FILLERS SHOWN TO THE SAME WITNESS IN A PREVIOUS IDEN-
TIFICATION PROCEDURE;
  (F) ENSURE THROUGHOUT THE IDENTIFICATION PROCEDURE THAT NO INFORMATION
CONCERNING A SUSPECT'S OR OTHER PERSON'S PREVIOUS ARRESTS OR  VIOLATIONS
IS VISIBLE TO THE WITNESS;
  (G)  VIEW THE COMPOSITION OF THE LIVE LINE-UP PRIOR TO THE IDENTIFICA-
TION PROCEDURE TO ENSURE THAT THE SUSPECT DOES NOT UNDULY STAND OUT;
  (H) RECORD THE ORDER OF EACH INDIVIDUAL IN THE LINE-UP AND ENTER  SUCH
ORDER  IN  THE RECORD OF IDENTIFICATION PROCEEDINGS PURSUANT TO SUBDIVI-
SION NINE OF THIS SECTION.

S. 4292                             6

  7. PERSONS CONDUCTING A PHOTO LINE-UP SHALL:
  (A) PROVIDE THE FOLLOWING VIEWING INSTRUCTIONS TO THE WITNESS IN PLAIN
LANGUAGE  IN SUBSTANTIALLY THE FOLLOWING FORM PRIOR TO SHOWING THE PHOTO
ARRAY: (I) INDIVIDUAL PHOTOGRAPHS SHALL BE VIEWED SEQUENTIALLY, ONE AT A
TIME; (II) THE PHOTOS ARE IN RANDOM ORDER; (III) TAKE AS  MUCH  TIME  AS
NEEDED  FOR  MAKING  A DECISION ABOUT EACH PHOTO BEFORE MOVING ON TO THE
NEXT; (IV) CONSISTENT WITH DEPARTMENTAL  OR  JURISDICTIONAL  PROCEDURES,
ALL  PHOTOS  WILL  BE  SHOWN  EVEN IF AN IDENTIFICATION IS MADE PRIOR TO
VIEWING ALL PHOTOS, OR; THE PROCEDURE WILL BE STOPPED AT THE POINT OF AN
IDENTIFICATION; (V) YOU MAY NOT RETURN TO A PREVIOUSLY VIEWED PHOTO;
  (B) CONFIRM THAT THE WITNESS UNDERSTANDS THE NATURE OF THE  SEQUENTIAL
PROCEDURE;
  (C)  PRESENT  EACH  PHOTO  TO THE WITNESS SEQUENTIALLY, REMOVING THOSE
PREVIOUSLY VIEWED BEFORE PRESENTING THE NEXT;
  (D) ENSURE THAT THE WITNESS DOES NOT WRITE OR MARK  ON  ANY  MATERIALS
THAT MAY BE USED IN SUBSEQUENT IDENTIFICATION PROCEDURES;
  (E)  ENSURE  THAT  NO  MATERIALS  INDICATING  PREVIOUS  IDENTIFICATION
RESULTS ARE VISIBLE TO THE WITNESS;
  (F) PRIOR TO OBTAINING  THE  WITNESS'S  STATEMENT  OF  CERTAINTY,  NOT
REPORT  TO  THE WITNESS ANY INFORMATION REGARDING AN INDIVIDUAL AFFIRMA-
TIVELY IDENTIFIED BY THE WITNESS;
  (G) AVOID SAYING, GESTURING, OR IMPLYING ANYTHING TO THE WITNESS  THAT
MAY INFLUENCE THE WITNESS'S SELECTION;
  (H) PREPARE A RECORD OF IDENTIFICATION PROCEDURES PURSUANT TO SUBDIVI-
SION  NINE  OF  THIS  SECTION,  INCLUDING,  BUT NOT LIMITED TO: DETAILED
RESULTS OF THE IDENTIFICATION PROCEDURE, SOURCES OF PHOTOS  USED,  NAMES
OF  ALL  PERSONS  PRESENT AT THE PHOTO LINE-UP, AND THE DATE AND TIME OF
THE IDENTIFICATION PROCEDURE;
  (I) INSTRUCT THE WITNESS NOT TO DISCUSS THE  IDENTIFICATION  PROCEDURE
OR  RESULTS WITH OTHER WITNESSES INVOLVED IN THE CASE AND DISCOURAGE THE
WITNESS FROM DISCUSSING THE RESULTS WITH ANY  OTHER  PERSONS,  INCLUDING
THE MEDIA.
  8. PERSONS CONDUCTING A LIVE LINE-UP SHALL:
  (A) PROVIDE THE FOLLOWING VIEWING INSTRUCTIONS TO THE WITNESS IN PLAIN
LANGUAGE  IN SUBSTANTIALLY THE FOLLOWING FORM PRIOR TO THE LIVE LINE-UP:
(I) INDIVIDUALS WILL BE VIEWED SEQUENTIALLY, ONE AT A TIME;  (II)  INDI-
VIDUALS  ARE  IN  RANDOM  ORDER;  (III)  TAKE AS MUCH TIME AS NEEDED FOR
MAKING A DECISION ABOUT EACH INDIVIDUAL BEFORE MOVING TO THE NEXT;  (IV)
CONSISTENT  WITH DEPARTMENTAL OR JURISDICTIONAL PROCEDURES, ALL INDIVID-
UALS WILL BE PRESENTED EVEN IF AN IDENTIFICATION IS MADE, OR; THE PROCE-
DURE WILL BE STOPPED AT THE POINT OF AN IDENTIFICATION;
  (B) CONFIRM THAT THE WITNESS UNDERSTANDS THE NATURE OF THE  SEQUENTIAL
PROCEDURE;
  (C) ENSURE THAT ALL LIVE LINE-UP PARTICIPANTS, OTHER THAN THE INDIVID-
UAL BEING VIEWED, ARE OUT OF THE VIEW OF THE WITNESS;
  (D)  PRESENT INDIVIDUALS IN THE LIVE LINE-UP SEPARATELY AND IN SEQUEN-
TIAL ORDER;
  (E) AVOID SAYING, GESTURING, OR IMPLYING ANYTHING TO THE WITNESS  THAT
MAY INFLUENCE THE WITNESS'S SELECTION;
  (F)  INSTRUCT THE LIVE FILLERS TO AVOID SAYING, GESTURING, OR IMPLYING
ANYTHING TO THE WITNESS THAT MAY SUGGEST THE POSITION OR IDENTITY OF THE
SUSPECT;
  (G) PRIOR TO OBTAINING  THE  WITNESS'S  STATEMENT  OF  CERTAINTY,  NOT
REPORT  TO  THE WITNESS ANY INFORMATION REGARDING AN INDIVIDUAL AFFIRMA-
TIVELY IDENTIFIED BY THE WITNESS;

S. 4292                             7

  (H) IF POSSIBLE, DOCUMENT THE LINE-UP PARTICIPANTS BY  PHOTOGRAPHS  OR
VIDEO,  INDIVIDUALLY  OR  IN  A  GROUP, IN A QUALITY THAT REPRESENTS THE
GROUP CLEARLY AND FAIRLY, AND ENTER SAME IN THE RECORD OF IDENTIFICATION
PROCEEDINGS;
  (I) PREPARE A RECORD OF IDENTIFICATION PROCEDURES PURSUANT TO SUBDIVI-
SION  NINE  OF  THIS  SECTION,  INCLUDING,  BUT NOT LIMITED TO: DETAILED
RESULTS OF THE IDENTIFICATION PROCEDURE, NAMES OF ALL PERSONS PRESENT AT
THE LIVE LINE-UP, AND THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
  (J) INSTRUCT THE WITNESS TO NOT DISCUSS THE  IDENTIFICATION  PROCEDURE
OR  RESULTS WITH OTHER WITNESSES INVOLVED IN THE CASE AND DISCOURAGE THE
WITNESS FROM DISCUSSING THE RESULTS WITH ANY  OTHER  PERSONS,  INCLUDING
THE MEDIA;
  (K)  ENSURE  THAT  THE WITNESS DOES NOT WRITE OR MARK ON ANY MATERIALS
THAT MAY BE USED IN SUBSEQUENT IDENTIFICATION PROCEDURES;
  (L)  ENSURE  THAT  NO  MATERIALS  INDICATING  PREVIOUS  IDENTIFICATION
RESULTS ARE VISIBLE TO THE WITNESS.
  9.  PERSONS CONDUCTING A PHOTO LINE-UP OR LIVE LINE-UP SHALL PREPARE A
COMPLETE AND ACCURATE DOCUMENTARY RECORD OF EACH PROCEEDING, SIGNED  AND
DATED  BY  THE WITNESS, INCLUDING, BUT NOT LIMITED TO, IDENTIFICATION OR
NON-IDENTIFICATION RESULTS AND ANY OTHER REQUIRED  INFORMATION  PURSUANT
TO STATUTORY AND JURISDICTIONAL REQUIREMENTS.
  10.  IF  AN AFFIRMATIVE IDENTIFICATION IS MADE IN A PHOTO LINE-UP OR A
LIVE LINE-UP PROCEDURE, THE WITNESS SHALL SIGN AND DATE A  STATEMENT  OF
CERTAINTY,  CONSISTENT WITH JURISDICTIONAL PROCEDURES. SUCH STATEMENT OF
CERTAINTY SHALL INCLUDE, BUT MAY NOT BE LIMITED TO, A GENERAL  STATEMENT
IN  THE  WITNESS'S  WORDS  OF  HOW CERTAIN HE OR SHE IS IN REGARD TO THE
AFFIRMATIVE IDENTIFICATION.
  11. NONCOMPLIANCE WITH THE PROVISIONS OF THIS SECTION SHALL NOT  ALONE
BE GROUNDS FOR THE SUPPRESSION OF EVIDENCE.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

co-Sponsors

2009-S4292A (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.78, CP L; add §303.4, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: S1099
2013-2014: S2850

2009-S4292A (ACTIVE) - Summary

2009-S4292A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4292A

 TITLE OF BILL :  An act to amend the criminal procedure law and the
family court act, in relation to the conduct of line-ups

 PURPOSE OR GENERAL IDEA : To implement guidelines for photo lineup,
live lineup and showup identification procedures.

 EXISTING LAW THE BILL WOULD ALTER : Adds a new section 60.78 to the
Criminal Procedure Law and amends Article 3 of the Family Court Act.

 SUMMARY OF PROVISIONS : Adds a new section 60.78 to the Criminal
Procedure Law and amends the Article 3 of the Family Court Act that:

Section 1 adds a new section 60.78 to the Criminal Procedure Law to
establish procedures designed to assure that live and photographic
identification procedures are conducted fairly and with a reduced
possibility of misidentification. Absent exigent circumstances, the
proceedings involving eyewitness identification procedures should be
videotaped, audio recorded and/or photographed.

Section 2 amends the Article 3 of the Family Court Act to extend the
provisions concerning eyewitness identification procedures established
by bill section nine to such procedures involving alleged juvenile
delinquents in proceedings brought pursuant to the Family Court Act.

 JUSTIFICATION :  Of all of the causes of wrongful conviction,
mistaken eyewitness identification is the most prevalent. At least one
mistaken eyewitness identification was a contributing factor in fully
half of New York's cases of wrongful conviction proven through DNA
testing.  The problem of misidentifications afflicts all law
enforcement agencies regardless of size or location. Indeed,
misidentifications have been the source of wrongful convictions in
state after state.  But however horrible the harm, it is not just the
wrongfully convicted who suffer when an eyewitness misidentifies an
innocent person as the perpetrator of a crime. When an eyewitness
misidentifies someone, police are also led away from the real
perpetrator, and instead focus their investigation on an innocent
person. What's more, if the police do again focus their case on the
real perpetrator, the eyewitness who had previously identified an
innocent person is "burned" and thus not of use in the criminal
prosecution. Simply put, nobody - not the police, prosecutors, judge,
jury, or indeed, the public at large - benefits from a
misidentification. The only person who benefits from an eyewitness
misidentification is the real perpetrator of a crime.

The good news is that over the past 30 years, a large body of
peer-reviewed research and practice has been developed, showing us how
simple reforms to the eyewitness identification process can greatly
reduce the inadvertent misleading influences present in traditional
eyewitness identification procedures.

A number of bar associations, police groups, and state commissions
have also conducted comprehensive consideration of these procedural
reforms. The American Bar Association House of Delegates adopted
Resolution 111 C in 2004, a statement of Best Practices for Promoting
Accuracy of Eyewitness Identification Procedures, which delineated
general guidelines for administering lineups and photo arrays, most of
which are included in this bill. In a report of the American Bar
Association's Criminal Justice Section's Innocence Committee to Ensure
the Integrity of the Criminal Process, the ABA resolved that federal,
state and local governments should be urged to adopt a series of
principles consistent with those contained in its resolution,
incorporating scientific advances in research that have been developed
over time.

In 2006, the International Association of Chiefs of Police (IACP)
published a "Training Key on Eyewitness Identification" which
concludes, "of all investigative procedures employed by police in
criminal cases, probably none is less reliable than the eyewitness
identification. Erroneous identifications create more injustice and
cause more suffering to innocent persons than perhaps any other aspect
of police work. Proper precautions must be followed by officers if
they are to use eyewitness identifications effectively and
accurately." The IACP Training Key endorses a number of key reforms,
including blind administration, proper filler selection, recording the
procedure, instructing the witness and obtaining a confidence
statement.

In 2008, the Commission on Accreditation for Law Enforcement Agencies,
Inc., (CALEA), a credentialing authority through the joint efforts of
law enforcement's major executive associations -- IACP; National
Organization of Black Law Enforcement Executives (NOBLE); National
Sheriffs' Association (NSA); and the Police Executive Research Forum
(PERF) -- recognized the importance of eyewitness identification
reform and required all agencies seeking their accreditation to
promulgate written policies regarding lineup and showup procedures.

The CALEA standards include a number of the reform elements
recommended and supported by social science research, including proper
lineup composition, instructing the witness and identifying the
eyewitness s level of confidence in his or her identification.

Moreover, on January 31 2009, the New York State Bar Association's
Task Force on Wrongful Convictions issued a preliminary report,
calling on the State to modify its eyewitness identification protocols
to enhance their reliability. Among other recommendations, the Task
Force suggested the following reforms:

* Blind administration (where the lineup administrator does not know
the identity of the suspect);

* The issuance of cautionary instructions to the eyewitness, including
the directive that the lineup administrator does not know the identity
of the suspect;

*Effective use of filler, or non-suspect, lineup members or
photographs;

* The use of only one suspect per lineup procedure; and

* Documentation of the line-up procedure.

Reform eyewitness identification procedures have already been adopted
in many jurisdictions including most notably the entire state of New
Jersey, which of course includes dense cities and rural towns.

In April 2001, New Jersey became the first state in the nation to
officially adopt the NIJ recommendations, additionally requiring the
blind administration of sequential presentation of lineups. To that
end, the New Jersey Attorney General issued Guidelines for Preparing
and Conducting Photo and Live Lineup Identification Procedures
mandating implementation in all law enforcement agencies statewide.

In September 2005, the Wisconsin Attorney General's Office followed
suit and issued a similar set of policies for statewide use Model
Policy and Procedure for Eyewitness Identification, which also
mandated what is known as the "blind-sequential" reform package.

In May 2005, the Criminal Justice Standards Division of the North
Carolina Department of Justice endorsed recommendations set forth in
the North Carolina Actual Innocence Commission's report,
Recommendations for Eyewitness Identification. Just last year, the
North Carolina legislature mandated the "blind sequential" reform
package when it passed perhaps the most comprehensive piece of
eyewitness identification reform legislation to date.

We must follow suit and pass legislation mandating a renovation of
eyewitness identification procedures statewide. It is important to
note while research and policy considerations support the sequential
presentation of lineups, this amended legislation does not require
such a procedural change, while not precluding the possibility of
future legislation that does.

 PRIOR LEGISLATIVE HISTORY : A.9578-A (2001-02), A.634 (2003-04),
A.772 (2005-06). A925 (2007-2008).

 FISCAL IMPLICATIONS : Minimal.

 EFFECTIVE DATE : This act shall take effect 180 days after it shall
have become a law.

2009-S4292A (ACTIVE) - Bill Text download pdf

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

                                 4292--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 21, 2009
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be  committed  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 and the family court act, in
  relation to the conduct of line-ups

  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 60.78 to read as follows:
S 60.78 IDENTIFICATION PROCEDURES.
  1. DEFINITIONS. FOR PURPOSES OF THIS SECTION:
  (A) "ADMINISTRATOR" MEANS A PERSON CONDUCTING  A  PHOTO  LINEUP,  LIVE
LINEUP OR SHOWUP;
  (B)  "BLIND"  MEANS  THE  ADMINISTRATOR DOES NOT KNOW WHICH PERSON, IF
ANY, IN THE IDENTIFICATION PROCEDURE IS A SUSPECT;
  (C) "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW  WHICH  PERSON  IN  THE
IDENTIFICATION  PROCEDURE  IS  A SUSPECT, BUT DOES NOT KNOW WHICH PHOTO-
GRAPH IS BEING VIEWED BY THE EYEWITNESS;
  (D) "CUSTODY" SHALL MEAN INCARCERATED, CIVILLY COMMITTED, ON PAROLE OR
PROBATION, OR SUBJECT TO SEX OFFENDER REGISTRATION;
  (E) "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR NEAR
THE SCENE OF, OR ANOTHER LOCATION RELEVANT TO, AN OFFENSE;
  (F) "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO  IS
NOT A SUSPECT CONCERNING THE OFFENSE BUT WHO IS INCLUDED IN AN IDENTIFI-
CATION PROCEDURE;
  (G)  "IDENTIFICATION  PROCEDURE" MEANS A LIVE LINEUP, PHOTO LINEUP, OR
SHOWUP;
  (H) "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH  A  GROUP
OF  PERSONS,  WHICH  SHALL  INCLUDE  THE  SUSPECT  AND OTHER PERSONS NOT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07326-03-9

S. 4292--A                          2

SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS FOR THE  PURPOSE
OF DETERMINING WHETHER THE EYEWITNESS MAY IDENTIFY THE SUSPECT;
  (I)  "PHOTO LINEUP" MEANS AN INDEMNIFICATION PROCEDURE IN WHICH PHOTO-
GRAPHS, WHICH SHALL INCLUDE  A  PHOTOGRAPH  OF  THE  SUSPECT  AND  OTHER
PERSONS  NOT  SUSPECTED  OF  THE OFFENSE, ARE DISPLAYED TO AN EYEWITNESS
EITHER IN HARD COPY FORM OR VIA COMPUTER OR OTHERWISE, FOR  THE  PURPOSE
OF DETERMINING WHETHER THE EYEWITNESS MAY IDENTIFY THE SUSPECT;
  (J)  "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN EYEWITNESS
IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
ER THE EYEWITNESS MAY IDENTIFY THE INDIVIDUAL; AND
  (K) "SUSPECT" MEANS A PERSON BELIEVED  BY  LAW  ENFORCEMENT  TO  BE  A
POSSIBLE  PERPETRATOR  OF,  OR  A PERSON OF INTEREST WITH RESPECT TO, AN
OFFENSE.
  2. EYEWITNESS  IDENTIFICATION  PROCEDURES;  GENERALLY.  (A)  PRIOR  TO
CONDUCTING A PHOTO OR LIVE LINEUP OR SHOWUP, THE INVESTIGATING PERSONNEL
SHALL  OBTAIN  AND  RECORD  AS COMPLETE A DESCRIPTION AS POSSIBLE OF THE
PERSON DESCRIBED BY THE  EYEWITNESS,  IN  THE  EYEWITNESS'S  OWN  WORDS,
INCLUDING  THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERSON
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 BE
ASKED  AND THE RESPONSE RECORDED ABOUT HIS OR HER VISUAL ACUITY, WHETHER
HE OR SHE HAS EVER BEEN PRESCRIBED  EYEGLASSES  OR  CONTACT  LENSES  AND
WHETHER  HE  OR  SHE  WAS  WEARING  THEM AT THE TIME OF THE OFFENSE. THE
ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS WAS WEARING  GLASSES  OR
CONTACT LENSES AT THE TIME OF THE IDENTIFICATION PROCEDURE.
  (B)  UNLESS  IMPRACTICABLE,  A  BLIND  OR  BLINDED ADMINISTRATOR SHALL
CONDUCT THE LIVE OR PHOTO LINEUP. WHEN IT IS IMPRACTICABLE FOR  A  BLIND
ADMINISTRATOR  TO  CONDUCT SUCH EYEWITNESS IDENTIFICATION PROCEDURE, THE
INVESTIGATOR SHALL STATE IN WRITING THE REASON THEREFOR.
  (C) PRIOR TO ANY LIVE LINEUP, PHOTO LINEUP OR SHOWUP,  THE  EYEWITNESS
SHALL  BE  INSTRUCTED,  WITHOUT  OTHER  EYEWITNESSES PRESENT, IN SUM AND
SUBSTANCE, THAT:
  (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
TIFICATION  PROCEDURE OR, IN THE CASE OF A SHOWUP, MAY OR MAY NOT BE THE
PERSON WHO IS PRESENTED TO THE EYEWITNESS;
  (II) WHERE APPLICABLE, THE ADMINISTRATOR DOES NOT KNOW WHO THE  PERPE-
TRATOR 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  OR  OTHER
PERSONS NOT INVOLVED IN THE MATTER.
  (D) 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' OWN WORDS, AS TO  THE  EYEWIT-
NESS' CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFICA-
TION  PROCEDURE IS THE PERSON THE EYEWITNESS OBSERVED IN CONNECTION WITH
THE EVENTS HE OR SHE REPORTED TO INVESTIGATORS. THE EYEWITNESS SHALL NOT
BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON BEFORE  THE  ADMINIS-
TRATOR OBTAINS THE EYEWITNESS' CONFIDENCE STATEMENT.

S. 4292--A                          3

  (E)  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. IF THE
EYEWITNESS REFUSES TO SIGN, THAT OCCURRENCE SHALL BE DOCUMENTED.
  (F)  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, TIME AND LOCATION OF THE IDENTIFICATION PROCEDURE;
  (IV)  IN  A  PHOTO  OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATION OF A
FILLER, OR IDENTIFICATIONS OF 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.
  (G) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE  IS  IMPRACTICA-
BLE,  THE OFFICER CONDUCTING THE IDENTIFICATION PROCEDURE SHALL DOCUMENT
THE REASON THEREFOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
SHALL BE MADE WHICH INCLUDES THE ITEMS SPECIFIED  IN  PARAGRAPH  (F)  OF
THIS  SUBDIVISION.  THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE
PHOTOGRAPHS USED IN A PHOTO LINEUP, INCLUDING PRESERVATION OF THE  ORDER
IN WHICH THE PHOTOS WERE VIEWED, OR BY A GROUP PHOTOGRAPH OR PHOTOGRAPHS
PRESERVING THE LIVE LINEUP THAT REPRESENTS THE GROUP FAIRLY AND CLEARLY,
OR  BY  A  PHOTOGRAPH  OF THE SHOWUP INCLUDING THE IMMEDIATE SURROUNDING
AREA OF THE LOCATION OF THE SHOWUP. IF BOTH A VIDEO AND AUDIO RECORD  OF
THE  IDENTIFICATION  PROCEDURE  ARE  IMPRACTICABLE,  THE  IDENTIFICATION
PROCEDURE SHALL BE PRESERVED FOLLOWING THE SAME  PRESERVATION  PROCEDURE
DELINEATED  IN  THIS  SECTION  WITH RESPECT TO AN AUDIO RECORD, WITH THE
EXCEPTION OF CREATING SUCH AUDIO RECORD.
  (H) RECORDINGS  OF  IDENTIFICATION  PROCEDURES  THAT  ARE  SECURED  IN
RELATION  TO  AN  INVESTIGATION  OR  PROSECUTION  OF AN OFFENSE SHALL BE
PRESERVED FOR THE PERIOD OF TIME  THAT  A    PERSON  CONVICTED  OF  THAT
OFFENSE COULD REMAIN IN CUSTODY FOR SUCH OFFENSE.
  3. ADDITIONAL PROVISIONS CONCERNING PHOTO LINEUPS AND LIVE LINEUPS.
  (A)  A  PHOTO  OR  LIVE  LINEUP  SHALL BE COMPOSED SO THAT THE FILLERS
GENERALLY RESEMBLE THE  EYEWITNESS'  DESCRIPTION  OF  THE  PERSON  WHILE
ENSURING  THAT  THE  SUSPECT DOES NOT UNDULY STAND OUT FROM THE FILLERS.
THE FILLERS SHALL RESEMBLE THE SUSPECT'S FACIAL FEATURES, WEIGHT,  BUILD
AND  SKIN  TONE  AND BE CLOSE TO HIS OR HER AGE, AND IF VISIBLE, INCLUDE
ANY UNIQUE OR UNUSUAL FEATURES SUCH AS SCARS OR TATTOOS.
  (B) 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.
  (C) IF THERE ARE MULTIPLE EYEWITNESSES,  EACH  EYEWITNESS  SHALL  VIEW
PHOTO  OR  LIVE  LINEUPS  SEPARATELY,  THE  SUSPECT SHALL BE PLACED IN A
DIFFERENT POSITION IN THE LIVE  LINEUP  AND/OR  PHOTO  LINEUP  FOR  EACH
EYEWITNESS,  THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH
EACH OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED,  AND
NO ADMINISTRATOR, WITNESS, OR OTHER PERSON MAY WRITE OR MARK ANY MATERI-
ALS THAT MAY BE USED IN SUBSEQUENT IDENTIFICATION PROCEDURES.
  (D)  NO WRITINGS OR INFORMATION CONCERNING THE INSTANT OR ANY PREVIOUS
ARREST, INDICTMENT OR CONVICTION OF THE SUSPECT SHALL BE VISIBLE OR MADE
KNOWN TO THE EYEWITNESS.

S. 4292--A                          4

  (E) WHEN THERE ARE MULTIPLE SUSPECTS,  EACH  IDENTIFICATION  PROCEDURE
SHALL INCLUDE ONLY ONE SUSPECT.
  (F)  NOTHING  SHALL  BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
POSITION OR ANY OTHER COMMENT THAT MIGHT OTHERWISE INFLUENCE HIS OR  HER
IDENTIFICATION.
  (G)  IN A PHOTO LINEUP, THE PHOTOGRAPH OF THE SUSPECT SHALL BE CONTEM-
PORARY AND SHALL RESEMBLE HIS OR HER  APPEARANCE  AT  THE  TIME  OF  THE
ALLEGED OFFENSE.
  (H)  IN  A  PHOTO  LINEUP, ONLY ONE PHOTOGRAPH OF THE SUSPECT SHALL BE
PRESENTED IN EACH IDENTIFICATION PROCEDURE AND  THERE  SHALL  BE  PHOTO-
GRAPHS OF AT LEAST FIVE FILLERS, IN ADDITION TO THE SUSPECT.
  (I) 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.
  (J) IN A LIVE LINEUP, THERE SHALL BE AT LEAST FOUR FILLERS,  IN  ADDI-
TION TO THE SUSPECT.
  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR MOVEMENTS, SHALL BE PERFORMED BY ALL LINEUP PARTICIPANTS.
  (L) IN A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF  VIEW  OF
THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE.
  4. ADDITIONAL PROVISIONS CONCERNING SHOWUPS. (A) EFFORTS SHALL BE MADE
TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF A SHOWUP. A SHOWUP MAY ONLY
BE PERFORMED WHEN EXIGENT CIRCUMSTANCES REQUIRE THE IMMEDIATE DISPLAY OF
A SUSPECT TO AN EYEWITNESS.
  (B)  ABSENT  EMERGENCY  CIRCUMSTANCES,  THE EYEWITNESS SHALL BE TRANS-
PORTED TO A NEUTRAL, NON-PREJUDICIAL LOCATION FOR THE  PURPOSES  OF  ANY
SHOWUP PROCEDURE.
  (C)  MEASURES  SHALL  BE  TAKEN  BY THE ADMINISTRATOR OF THE SHOWUP TO
REDUCE POTENTIALLY DAMAGING OR PREJUDICIAL INFERENCES THAT MAY BE  DRAWN
BY  THE EYEWITNESS, INCLUDING REFRAINING FROM SUGGESTING, THROUGH STATE-
MENTS OR NON-VERBAL CONDUCT, THAT THE PERSON TO BE OBSERVED IS A SUSPECT
OR MAY BE THE PERPETRATOR OF THE OFFENSE, REMOVING THE  PERSON  OBSERVED
FROM  THE  POLICE CAR, AND WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE
PERSON OBSERVED.
  (D) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A  TIME
SHALL  BE  PRESENT  AT THE SHOWUP LOCATION AND PARTICIPATE IN THE SHOWUP
PROCEDURE. IF A POSITIVE IDENTIFICATION IS MADE, AND AN ARREST IS LEGAL-
LY JUSTIFIED, ADDITIONAL EYEWITNESSES SHALL BE SHOWN LIVE OR PHOTO LINE-
UPS.
  (E) IF THERE ARE MULTIPLE SUSPECTS, EACH SUCH PERSON  SHALL  BE  SEPA-
RATED AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES.
  5. WITH RESPECT TO ANY PHOTO LINEUP, LIVE LINEUP OR SHOWUP:
  (A)  IF  LAW  ENFORCEMENT  OFFICIALS  OR  PROSECUTING  AGENCIES DO NOT
SUBSTANTIALLY COMPLY WITH THE PROVISIONS  OF  THIS  SECTION,  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 WOULD BE NEVERTHELESS SUFFICIENTLY RELIABLE;
  (B) EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
SECTION SHALL BE CONSIDERED BY  TRIAL  COURTS  IN  ADJUDICATING  MOTIONS
PURSUANT TO SECTION 710.60 OF THIS CHAPTER;
  (C) EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
SECTION  SHALL BE ADMISSIBLE IN SUPPORT OF CLAIMS OF EYEWITNESS MISIDEN-
TIFICATION;
  (D) WHEN EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF
THIS SECTION HAS BEEN PRESENTED AT TRIAL, THE TRIAL COURT SHALL INSTRUCT
THE JURY THAT THE PROVISIONS WERE DESIGNED TO REDUCE THE RISK  OF  MISI-

S. 4292--A                          5

DENTIFICATION  AND  THAT IT MAY CONSIDER CREDIBLE EVIDENCE OF NONCOMPLI-
ANCE WHEN ASSESSING THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS; AND
  (E) WHEN EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF
THIS  SECTION,  OR  OF ANY OTHER UNNECESSARILY SUGGESTIVE PROCEDURE, HAS
UNDERMINED THE COURT'S CONFIDENCE IN THE RELIABILITY OF  THE  EYEWITNESS
IDENTIFICATION, THE COURT MAY INSTRUCT THE JURY THAT IT MUST EXAMINE THE
IDENTIFICATION EVIDENCE WITH THE GREATEST OF CAUTION.
  S 2.  The family court act is amended by adding a new section 303.4 to
read as follows:
  S  303.4. CERTAIN IDENTIFICATION PROCEDURES. 1. WHENEVER AN EYEWITNESS
IDENTIFICATION PROCEDURE IS CONDUCTED WITH RESPECT  TO  A  SUSPECT  WHO,
WHILE  LESS  THAN  SIXTEEN YEARS OF AGE, IS ALLEGED TO HAVE COMMITTED AN
ACT THAT WOULD  CONSTITUTE  A  CRIME  IF  COMMITTED  BY  AN  ADULT,  THE
PROVISIONS OF SECTION 60.78 OF THE CRIMINAL PROCEDURE LAW SHALL APPLY.
  2.  FOR PURPOSES OF THIS SECTION AND SUCH APPLICATION OF SECTION 60.78
OF THE CRIMINAL PROCEDURE LAW:
  (A) "SUSPECT" MEANS A PERSON BELIEVED  BY  LAW  ENFORCEMENT  TO  BE  A
POSSIBLE  PERPETRATOR OF AN ACT THAT WOULD CONSTITUTE A CRIME IF COMMIT-
TED BY AN ADULT OR A PERSON OF INTEREST WITH RESPECT TO  ANY  SUCH  ACT;
AND
  (B)  "IDENTIFICATION  PROCEDURE"  MEANS A LIVE LINEUP, PHOTO LINEUP OR
SHOWUP.
  S 3.  This act shall take effect on the one    hundred  eightieth  day
after it shall have become a law.

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