Provides that procedures for photographic identification of a defendant in a criminal case be videotaped for the identification to be used in evidence

1 Co-sponsor

• Jeffrey D. Klein

Title of bill

An act to amend the criminal procedure law, in relation to requiring evidence of identification by photographic videotape

Purpose

This bill provides that procedures for photographic identification of a defendant in a criminal case be videotaped for the identification to be used in evidence.

Summary of provisions

Amends Section 1 of the criminal procedure law by adding a new section - section 60.27 by adding a subdivision that includes the following: Notwithstanding any other law, rule or regulation to the contrary, in any circumstance where evidence of an identification of a defendant by photographic array would be otherwise admissible in evidence, such identification shall not be admissible in evidence unless proof of the procedures used in the identification is introduced by videotape evidence of such procedures.

Justification

There has been a major shift in criminal justice legislation over the past decade, in large part due to the phenomenon of DNA exonerations and innocent people being freed from death row. It is clear that wrongful convictions have played, and will continue to play, a significant role in reforming the criminal justice system. According to statistics provided by the Innocence Project of New York, who has successfully corrected 143 wrongful convictions through DNA and supplemental evidence, the number one most common factor in the first 70 DNA exonerations was mistaken identity.

Currently, photo arrays (a display of six numbered photographs of different people with similar features) are shown to the witness of a crime who is then asked to identify the person responsible for the crime. These photo arrays are sometimes presented to witnesses in places where there is no judicial oversight or defense, i.e., a witness's home, place of business or even employment. It has been found that in some situations, detectives conducting the photo array have made suggestion as to who the suspect is by subtle suggestion, body language or a line of questioning that leads the witness directly to the "preferred" suspect in the photo array. Video or audio taping of the photo array process will help protect the innocent and enhance the integrity of the process itself.

Legislative history

A.11742 of 2003-04, A.3210 of 2007-2008

Fiscal implications

To be determined.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law and shall apply to any criminal action commenced after such date.