NY State Senate Bill 2017-S1819

Senate Bill S1819

2017-2018 Legislative Session

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

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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 03, 2018	referred to codes
Jan 11, 2017	referred to codes

2017-S1819 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.17, add Art 80 Title D §§80.10 - 80.40, CP L
Versions Introduced in 2015-2016 Legislative Session:: S4528

2017-S1819 (ACTIVE) - Summary

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

2017-S1819 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S1819

 TITLE OF BILL :  An act to amend the criminal procedure law, in
relation to eyewitness identification procedures

 PURPOSE OR GENERAL IDEA OF BILL :

This bill would establish procedures to reduce the occurrence of
erroneous eyewitness identifications.

 SUMMARY OF SPECIFIC PROVISIONS :

Section one of the bill adds a new section 60.17 to the Criminal
Procedure Law ("CPL") to provide for the treatment of expert testimony
in the context of eyewitness identification.

Section 2 of the bill adds a new article 80 to the CPL to provide the
procedures to be used with respect to eyewitness identification. New
CPL section 80.10 contains definitions, new CPL section 80.20 sets out
the procedures to be followed, new CPL section 80.30 addresses
evidentiary matters, and new CPL section 80.40 provides for training.

Section 3 of the bill is the effective date.

 JUSTIFICATION :

In October 2005, the Assembly Codes Committee's Subcommittee on
Criminal Procedure, chaired by Assembly Member O'Donnell, conducted a
roundtable on eyewitness identification, with participation by a
variety of experts in the field as well as representatives of law
enforcement and the defense bar. The purpose of the 2005 roundtable
was to review and evaluate methods that may improve the accuracy and
reliability of eyewitness identification procedures, with the
long-term goal of determining whether legislation was needed, and if
so, what form it should take. Many of the issues discussed at that
roundtable were examined in depth by the New York State Bar
Association's Task Force on Wrongful Convictions, and this bill is one
of six bills based on the Task Force's recommendations.

In 2008, the New York State Bar Association created a Task Force on
Wrongful Convictions, which examined 53 cases where a defendant was
wrongfully convicted of a crime and later exonerated. Task Force
members reviewed all available documentation and in many cases also
interviewed attorneys, law enforcement personnel and judges involved
in both the original cases and subsequent exoneration proceedings. In
its final report, approved by the Bar Association in 2009, the Task
Force identified six root causes that were primarily responsible for
the wrongful convictions. This bill is intended to address one of the
causes so identified - identification procedures and the
misidentification of the accused by the victim and/or one or more
eyewitnesses.*

In comprehensive studies that have been done nationwide, and in the
analysis of the cases identified by the Task Force, erroneous
identifications were responsible for more wrongful convictions than
any other single factor.** Further, existing legal protections, such
as cross examination of witnesses and the presence of counsel at
lineups, target purposeful as well as unintentional misconduct, and do
not sufficiently protect against witnesses who mistakenly believe that
they are making the correct identification. Nor does the appellate
process provide effective corrective measures.*** There is a need to
reduce or eliminate the problem of erroneous eyewitness
identifications early in the criminal justice process in order to
ensure that reliable evidence is presented at trial and that verdicts
are based on accurate information, and, to the extent possible, to
ensure that innocent individuals do not even enter the criminal
justice system, thus freeing law enforcement to devote resources to
identifying and pursuing the guilty. Thus, efforts need to be made at
the investigative level to enhance the accuracy of identification
procedures, and at the trial level to ensure that juries are properly
informed of the factors that may affect the re liability of the
identification and, if appropriate, the limitations of such
procedures.

To address these issues, this bill includes provisions for double
blind administration, cautionary instructions, effective use of
fillers, permitting only one suspect per lineup, and documentation of
the identification procedure. It also permits expert testimony on
eyewitness identification at trial and provides for jury instructions
on eyewitness identification. For the first time in New York, this
bill will also permit evidence of photographic identifications to be
admitted if they have been properly conducted and documented in
accordance with the procedures set forth in new CPL Article 80. The
bill also provides sanctions for failure to comply with the mandated
procedures.

 PRIOR LEGISLATIVE HISTORY :

S.4528 (2015-2016) Referred to Codes
A.5317-A (2011-2012, to third reading)
A.11052-A/S.7842-A (2010)

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect 180 days after it shall have become a law
and shall apply to all identification procedures that take place on or
after the effective date.
*See, Final Report of the New York State Bar Association's Task Force
on Wrongful Convictions, dated April 4, 2009, available at
www.nysba.org, (hereinafter referred to as Task Force Final Report) at
pages 5-6.
**Task Force Final Report at 45
***Id. At 46-49.

2017-S1819 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1819
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 11, 2017
                                ___________
 
 Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in  relation  to  eyewitness
   identification procedures
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The criminal procedure law  is  amended  by  adding  a  new
 section 60.17 to read as follows:
 § 60.17 RULES  OF  EVIDENCE;  EXPERT TESTIMONY IN CERTAIN IDENTIFICATION
           CASES.
   IN ANY CRIMINAL PROCEEDING IN WHICH EYEWITNESS IDENTIFICATION TESTIMO-
 NY IS INTRODUCED, OR IN OTHER CASES WHERE THE INTERESTS  OF  JUSTICE  SO
 REQUIRE, THE COURT MAY ADMIT EXPERT TESTIMONY REGARDING RELEVANT ASPECTS
 OF  IDENTIFICATION PROCEDURES, INCLUDING BUT NOT LIMITED TO FACTORS THAT
 AFFECT THE RELIABILITY AND ACCURACY OF EYEWITNESS IDENTIFICATION.
   § 2. Title D of the criminal procedure law is amended by adding a  new
 article 80 to read as follows:
                                ARTICLE 80
                         IDENTIFICATION PROCEDURES
 SECTION 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
         80.20 IDENTIFICATION PROCEDURES; GENERALLY.
         80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
         80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
 § 80.10 IDENTIFICATION PROCEDURES; DEFINITIONS.
   AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS:
   1. "ADMINISTRATOR" MEANS THE PERSON CONDUCTING THE PHOTO OR LIVE LINE-
 UP.
   2. "SUSPECT" MEANS THE PERSON BELIEVED BY LAW ENFORCEMENT  TO  BE  THE
 POSSIBLE PERPETRATOR OF THE CRIME.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01019-01-7

 S. 1819                             2
 
   3.  "BLIND"  MEANS THE ADMINISTRATOR DOES NOT KNOW THE IDENTITY OF THE
 SUSPECT.
   4.  "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW WHO THE SUSPECT IS, BUT
 DOES NOT KNOW WHICH LINEUP MEMBER IS BEING VIEWED BY THE  EYEWITNESS  AT
 ANY GIVEN TIME.
   5.  "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR NEAR
 THE SCENE OF AN OFFENSE OR UPON SOME  OTHER  OCCASION  RELEVANT  TO  THE
 CASE.
   6.  "FILLER"  MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO IS
 NOT SUSPECTED OF AN OFFENSE AND IS INCLUDED IN AN IDENTIFICATION  PROCE-
 DURE.
   7.  "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP, A PHOTO LINEUP, OR
 A SHOWUP.
   8. "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH A GROUP OF
 PERSONS, INCLUDING THE SUSPECTED PERPETRATOR OF  AN  OFFENSE  AND  OTHER
 PERSONS  NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS FOR
 THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
 AS THE PERPETRATOR.
   9. "PHOTO LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN  ARRAY
 OF  PHOTOGRAPHS,  INCLUDING A PHOTOGRAPH OF THE SUSPECTED PERPETRATOR OF
 AN OFFENSE AND ADDITIONAL PHOTOGRAPHS OF OTHER PERSONS NOT SUSPECTED  OF
 THE  OFFENSE,  IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD COPY FORM OR
 VIA COMPUTER FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDEN-
 TIFIES THE SUSPECT AS THE PERPETRATOR.
   10. "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN  EYEWITNESS
 IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
 ER THE EYEWITNESS IDENTIFIES THIS INDIVIDUAL AS THE PERPETRATOR.
 § 80.20 IDENTIFICATION PROCEDURES; GENERALLY.
   1.  IF IDENTIFICATION PROCEDURES (A) HAVE BEEN CONDUCTED IN ACCORDANCE
 WITH THIS SECTION AND UNDER CIRCUMSTANCES CONSISTENT WITH SUCH RIGHTS AS
 AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS STATE OR  OF
 THE  UNITED  STATES;  AND (B) ARE PROPERLY DOCUMENTED IN ACCORDANCE WITH
 PARAGRAPHS (T), (U) AND (V) OF SUBDIVISION TWO OF THIS SECTION, TESTIMO-
 NY MAY BE GIVEN BY A WITNESS THAT HE OR SHE OBSERVED A PERSON OR  PHOTO-
 GRAPH  OF  A PERSON ON AN OCCASION PRIOR TO HIS OR HER TESTIMONY WHOM HE
 OR SHE RECOGNIZES AS THE SAME PERSON WHOM HE OR SHE HAD OBSERVED ON  THE
 FIRST OR INCRIMINATING OCCASION.
   2.  ANY  CRIMINAL  JUSTICE ENTITY CONDUCTING EYEWITNESS IDENTIFICATION
 PROCEDURES SHALL ADOPT SPECIFIC WRITTEN PROCEDURES FOR CONDUCTING  PHOTO
 AND LIVE LINEUPS THAT COMPLY WITH THE FOLLOWING REQUIREMENTS:
   (A)  PRIOR  TO A PHOTO OR LIVE LINEUP, LAW ENFORCEMENT SHALL RECORD AS
 COMPLETE A DESCRIPTION AS POSSIBLE OF THE PERPETRATOR  PROVIDED  BY  THE
 EYEWITNESS,  IN  THE  EYEWITNESS'S  OWN WORDS. THIS STATEMENT SHALL ALSO
 INCLUDE INFORMATION REGARDING THE WITNESS'S DEGREE OF  ATTENTION  DURING
 THE  INCIDENT  AND THE WITNESS'S OPPORTUNITY TO VIEW THE PERPETRATOR, AS
 WELL AS THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERPETRA-
 TOR, INCLUDING LOCATION, TIME, DISTANCE, OBSTRUCTIONS, LIGHTING, WEATHER
 CONDITIONS AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO  ALCOHOL,
 DRUGS,  STRESS  AND  VISUAL/AUDITORY  DISABILITIES.  THE EYEWITNESS ALSO
 SHALL BE ASKED IF HE OR SHE NEEDS GLASSES OR CONTACT LENSES AND  WHETHER
 HE OR SHE WAS WEARING THEM AT THE TIME OF THE OFFENSE. THE ADMINISTRATOR
 SHALL  NOTE WHETHER THE EYEWITNESS WAS WEARING GLASSES OR CONTACT LENSES
 AT THE TIME OF THE IDENTIFICATION PROCEDURES;
   (B) UNLESS IMPRACTICABLE, A BLIND ADMINISTRATOR SHALL CONDUCT THE LIVE
 OR PHOTO LINEUP;

 S. 1819                             3
 
   (C) WHEN IT IS IMPRACTICABLE FOR A BLIND ADMINISTRATOR TO CONDUCT  THE
 EYEWITNESS  IDENTIFICATION  PROCEDURE,  THE  INVESTIGATOR SHALL STATE IN
 WRITING THE REASON THEREFOR, AND SHALL CONDUCT THE LINEUP BLINDED;
   (D)  THE  EYEWITNESS  SHALL  BE INSTRUCTED, WITHOUT OTHER EYEWITNESSES
 PRESENT, PRIOR TO ANY LIVE OR PHOTO LINEUP THAT:
   (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
 TIFICATION PROCEDURE;
   (II) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;
   (III)  THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
 TION;
   (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN  IDENTIFICATION
 IS MADE;
   (V)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
 STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
 TIFICATION; AND
   (VI)  THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
 ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
 SPEAK WITH THE MEDIA;
   (E)  UNLESS  IMPRACTICABLE,  THE  PHOTOGRAPH  OF THE SUSPECT USED IN A
 PHOTO LINEUP SHALL BE CONTEMPORARY AND SHALL RESEMBLE HIS OR HER APPEAR-
 ANCE AT THE TIME OF THE OFFENSE. WHEN IT IS IMPRACTICABLE, THE  INVESTI-
 GATOR SHALL STATE IN WRITING THE REASON THEREFOR;
   (F) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
 GRAPHS  THEMSELVES  OR  THE  BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
 WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS STAND OUT;
   (G) A PHOTO OR LIVE LINEUP SHALL  BE  COMPOSED  SO  THAT  THE  FILLERS
 GENERALLY  RESEMBLE  THE  EYEWITNESS'S  DESCRIPTION  OF THE PERPETRATOR,
 WHILE ENSURING THAT THE SUSPECT DOES NOT STAND OUT FROM THE FILLERS;
   (H) IN A PHOTO OR LIVE LINEUP, FILLERS  SHALL  POSSESS  THE  FOLLOWING
 CHARACTERISTICS:
   (I)  ALL  FILLERS SELECTED SHALL RESEMBLE THE EYEWITNESS'S DESCRIPTION
 OF THE PERPETRATOR IN SIGNIFICANT FEATURES INCLUDING, BUT NOT LIMITED TO
 FACE, WEIGHT, BUILD AND SKIN TONE, AND INCLUDING ANY UNIQUE  OR  UNUSUAL
 FEATURES  TO THE EXTENT POSSIBLE INCLUDING, BUT NOT LIMITED TO ANY SCARS
 OR  TATTOOS;  IF  THE  SUSPECT  DOES  NOT  RESEMBLE   THE   EYEWITNESS'S
 DESCRIPTION  OF  THE  PERPETRATOR  IN  SIGNIFICANT FEATURES, THE FILLERS
 SELECTED SHALL RESEMBLE THE SUSPECT IN SIGNIFICANT FEATURES;
   (II) AT LEAST FIVE FILLERS SHALL BE INCLUDED IN  A  PHOTO  LINEUP,  IN
 ADDITION TO THE SUSPECT;
   (III)  AT  LEAST  FOUR  FILLERS SHALL BE INCLUDED IN A LIVE LINEUP, IN
 ADDITION TO THE SUSPECT; AND
   (IV) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A PHOTO  LINEUP  OR  LIVE
 LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
 OF  INVOLVEMENT  IN  THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
 INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
 ANY PRIOR LINEUPS;
   (I) IF THERE ARE MULTIPLE EYEWITNESSES:
   (I) EACH EYEWITNESS SHALL VIEW PHOTO OR LIVE LINEUPS SEPARATELY;
   (II) THE SUSPECT SHALL BE PLACED IN A DIFFERENT POSITION IN  THE  LIVE
 LINEUP AND/OR PHOTO LINEUP FOR EACH EYEWITNESS; AND
   (III) THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH EACH
 OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED;
   (J)  IN  AN  IDENTIFICATION  PROCEDURE,  NO  WRITINGS  OR  INFORMATION
 CONCERNING THE INSTANT OR ANY PREVIOUS ARREST, INDICTMENT OR  CONVICTION
 OF THE SUSPECT SHALL BE VISIBLE OR MADE KNOWN TO THE EYEWITNESS;

 S. 1819                             4
 
   (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
 GESTURES OR OTHER MOVEMENTS, SHALL BE PERFORMED BY  ALL  LINEUP  PARTIC-
 IPANTS;
   (L)  IN  A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF VIEW OF
 THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE;
   (M) WHEN THERE ARE MULTIPLE SUSPECTS,  EACH  IDENTIFICATION  PROCEDURE
 SHALL INCLUDE ONLY ONE SUSPECT;
   (N)  NOTHING  SHALL  BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
 POSITION IN THE PHOTO OR LIVE LINEUP;
   (O) NOTHING SHALL BE SAID TO THE EYEWITNESS THAT MIGHT  INFLUENCE  THE
 EYEWITNESS'S IDENTIFICATION OF ANY PARTICULAR LINEUP MEMBER;
   (P) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
 SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
 THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
 NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
 CATION PROCEDURE IS THE PERPETRATOR;
   (Q) IF THE EYEWITNESS IDENTIFIES A  PERSON  AS  THE  PERPETRATOR,  THE
 EYEWITNESS  SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON
 BEFORE THE ADMINISTRATOR OBTAINS THE EYEWITNESS'S  CONFIDENCE  STATEMENT
 ABOUT THE SELECTION;
   (R)  A  RECORD  OF  THE  IDENTIFICATION  PROCEDURE  SHALL BE MADE THAT
 INCLUDES ALL  IDENTIFICATION  AND  NON-IDENTIFICATION  RESULTS  OBTAINED
 DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES;
   (S) EFFORTS SHALL BE MADE TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF
 A SHOWUP. IN ADDITION:
   (I)  SHOWUPS  SHALL  ONLY  BE PERFORMED WITHIN A REASONABLE TIME OF AN
 OFFENSE, USING A LIVE SUSPECT AND IN EXIGENT CIRCUMSTANCES THAT  REQUIRE
 THE IMMEDIATE DISPLAY OF A SUSPECT TO AN EYEWITNESS;
   (II) IN THE EVENT OF THE ADMINISTRATION OF A SHOWUP PROCEDURE:
   (A)  A  FULL  AND  DETAILED  DESCRIPTION  OF  THE PERPETRATOR SHALL BE
 PROVIDED BY THE EYEWITNESS BEFORE THE EYEWITNESS OBSERVES  THE  SUSPECT.
 THIS  STATEMENT  SHALL  ALSO INCLUDE INFORMATION REGARDING THE WITNESS'S
 DEGREE OF ATTENTION DURING THE INCIDENT AND THE WITNESS'S OPPORTUNITY TO
 VIEW THE PERPETRATOR, AS WELL AS THE CONDITIONS UNDER WHICH THE  EYEWIT-
 NESS  OBSERVED  THE  PERPETRATOR  INCLUDING  LOCATION,  TIME,  DISTANCE,
 OBSTRUCTIONS,  LIGHTING,  WEATHER  CONDITIONS  AND  OTHER   IMPAIRMENTS,
 INCLUDING  BUT NOT LIMITED TO ALCOHOL, DRUGS, STRESS AND VISUAL/AUDITORY
 DISABILITIES. THE EYEWITNESS SHALL ALSO BE ASKED  IF  HE  OR  SHE  NEEDS
 GLASSES  OR CONTACT LENSES AND WHETHER HE OR SHE WAS WEARING THEM AT THE
 TIME OF THE OFFENSE. THE ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS
 WAS WEARING GLASSES OR CONTACT LENSES AT THE TIME OF THE  IDENTIFICATION
 PROCEDURE;
   (B)  UNLESS  IMPRACTICABLE  THE  EYEWITNESS  SHALL BE TRANSPORTED TO A
 NEUTRAL,  NON-LAW  ENFORCEMENT  LOCATION  WHERE  THE  SUSPECT  IS  BEING
 DETAINED FOR THE PURPOSES OF A SHOWUP PROCEDURE;
   (C)  EYEWITNESSES  SHALL  BE  PROVIDED  WITH INSTRUCTIONS PRIOR TO THE
 SHOWUP, INCLUDING THAT:
   (1) THE PERPETRATOR MAY OR MAY NOT BE THE PERSON THAT IS PRESENTED  TO
 THE EYEWITNESS;
   (2)  THE  EYEWITNESS  SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
 TION;
   (3) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT  AN  IDENTIFICATION
 IS MADE;
   (4)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
 STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
 TIFICATION; AND

 S. 1819                             5
 
   (5)  THE  EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
 ITS RESULTS WITH OTHER EYEWITNESSES INVOLVED IN THE CASE AND SHOULD  NOT
 SPEAK WITH THE MEDIA;
   (D)  MEASURES SHALL BE TAKEN BY INVESTIGATORS AT THE SHOWUP, INCLUDING
 THE ADMINISTRATOR OF THE  SHOWUP,  TO  REDUCE  POTENTIALLY  DAMAGING  OR
 PREJUDICIAL INFERENCES THAT MAY BE DRAWN BY THE EYEWITNESS, INCLUDING:
   (1)  REFRAINING  FROM  SUGGESTING,  THROUGH  STATEMENTS  OR NON-VERBAL
 CONDUCT, THAT THE SUSPECT IS OR MAY BE THE PERPETRATOR OF THE CRIME;
   (2) REMOVING THE SUSPECT FROM A SQUAD CAR; AND
   (3) WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE SUSPECT;
   (E) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A  TIME
 SHALL  PARTICIPATE IN THE SHOWUP PROCEDURE. ONLY ONE OF THE EYEWITNESSES
 SHALL BE PRESENT AT THE LOCATION OF THE SHOWUP PROCEDURE. IF A  POSITIVE
 IDENTIFICATION  IS  MADE, AND AN ARREST IS JUSTIFIED, ADDITIONAL EYEWIT-
 NESSES SHALL BE SHOWN LIVE OR PHOTO LINEUPS;
   (F) IF THERE ARE MULTIPLE SUSPECTS, THESE SUSPECTS SHALL BE  SEPARATED
 AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES; AND
   (G) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
 SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
 THE IDENTIFICATION AND IN THE EYEWITNESS'S OWN WORDS, AS TO THE  EYEWIT-
 NESS'S  CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFI-
 CATION PROCEDURE IS THE PERPETRATOR.  IF  THE  EYEWITNESS  IDENTIFIES  A
 PERSON  AS  THE  PERPETRATOR,  THE  EYEWITNESS SHALL NOT BE PROVIDED ANY
 INFORMATION CONCERNING SUCH PERSON BEFORE THE ADMINISTRATOR OBTAINS  THE
 EYEWITNESS'S CONFIDENCE STATEMENT ABOUT THE SELECTION;
   (T)  UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
 DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
   (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED  DURING
 THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
 EYEWITNESSES' CONFIDENCE STATEMENTS;
   (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
   (III) THE DATE AND TIME OF THE IDENTIFICATION PROCEDURE;
   (IV)  IN A PHOTO OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATIONS OF ANY
 FILLERS; AND
   (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF  THE  LINEUP  MEMBERS  AND
 OTHER  RELEVANT  IDENTIFYING  INFORMATION, AND THE SOURCES OF ALL PHOTO-
 GRAPHS OR PERSONS USED IN THE LINEUP;
   (U) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE  IS  IMPRACTICA-
 BLE,  THE OFFICER CONDUCTING THE LINEUP SHALL DOCUMENT THE REASON THERE-
 FOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE SHALL  BE  MADE
 WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDIVISION.
 THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE PHOTOGRAPHS USED IN
 A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS USED IN A LIVE
 LINEUP OR SHOWUP; AND
   (V)  IF  BOTH A VIDEO AND AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
 ARE IMPRACTICABLE, THE OFFICER CONDUCTING THE LINEUP SHALL  DOCUMENT  IN
 WRITING THE REASON THEREFOR, AND A WRITTEN RECORD OF THE LINEUP SHALL BE
 MADE  WHICH INCLUDES THE ITEMS SPECIFIED IN PARAGRAPH (T) OF THIS SUBDI-
 VISION. THE WRITTEN RECORD SHALL BE SUPPLEMENTED BY ALL  OF  THE  PHOTO-
 GRAPHS USED IN A PHOTO LINEUP, AND PHOTOGRAPHS OF ALL OF THE INDIVIDUALS
 USED IN A LIVE LINEUP OR SHOWUP.
 § 80.30 IDENTIFICATION PROCEDURES; EVIDENTIARY MATTERS.
   FOR  ANY  PHOTO  OR LIVE LINEUP, OR SHOWUP PROCEDURE THAT WAS ADMINIS-
 TERED AFTER THE DATE UPON WHICH THIS ARTICLE TOOK EFFECT:
   1. IF  LAW  ENFORCEMENT  OFFICIALS  OR  PROSECUTING  AGENCIES  DO  NOT
 SUBSTANTIALLY  COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE DEFENDANT

 S. 1819                             6
 
 MAY MOVE TO SUPPRESS  EYEWITNESS  IDENTIFICATION  EVIDENCE  PURSUANT  TO
 ARTICLE SEVEN HUNDRED TEN OF THIS CHAPTER.
   2.   COURTS SHALL CONSIDER EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF
 THE PROVISIONS OF  SECTION  80.20  OF  THIS  ARTICLE  WHEN  ADJUDICATING
 MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE.
   3.  IF  THE COURT DOES NOT SUPPRESS EYEWITNESS IDENTIFICATION EVIDENCE
 BUT FINDS THAT LAW ENFORCEMENT OFFICIALS OR PROSECUTING AGENCIES  FAILED
 TO  SUBSTANTIALLY  COMPLY WITH THE PROVISIONS OF THIS ARTICLE, THE COURT
 SHALL  INSTRUCT  THE  JURY  THAT  EYEWITNESS  IDENTIFICATION   PROCEDURE
 REQUIREMENTS  AS  SET  FORTH IN THIS CHAPTER WERE DESIGNED TO REDUCE THE
 RISK OF MISIDENTIFICATION AND THE JURY MAY CONSIDER CREDIBLE EVIDENCE OF
 NON-COMPLIANCE WHEN ASSESSING THE RELIABILITY OF EYEWITNESS  IDENTIFICA-
 TIONS.
   4.  ADDITIONALLY, IF THE COURT FINDS THAT SUCH SUBSTANTIAL NON-COMPLI-
 ANCE WITH THE PROVISIONS OF THIS ARTICLE  HAVE  UNDERMINED  THE  COURT'S
 CONFIDENCE  IN  THE  RELIABILITY  OF  THE EYEWITNESS IDENTIFICATION, THE
 COURT SHALL ALSO INSTRUCT THE JURY THAT IT SHOULD VIEW  THE  IDENTIFICA-
 TION EVIDENCE WITH DISTRUST.
 § 80.40 IDENTIFICATION PROCEDURES; PROFESSIONAL TRAINING.
   THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CREATE, ADMINISTER AND
 CONDUCT TRAINING PROGRAMS FOR PROFESSIONALS INVOLVED IN LAW ENFORCEMENT,
 INCLUDING  BUT NOT LIMITED TO POLICE AND OTHER LAW ENFORCEMENT OFFICIALS
 AND RECRUITS, PROSECUTORS, JUDGES AND  DEFENSE  COUNSEL,  REGARDING  THE
 METHODS,  TECHNICAL  ASPECTS AND SCIENTIFIC FINDINGS REGARDING THE BASIS
 OF THE EYEWITNESS IDENTIFICATION PRACTICES AND PROCEDURES REFERENCED  IN
 THIS ARTICLE.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law, and shall apply to all identification proce-
 dures that take place on or after such date.

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