Relates to eyewitness identification procedures; repealer

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 repeals CPL section 60.30.

Section 4 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. See, Final Report of the New York State Bar Association's Task Force on Wrongful Convictions, dated April 4, 2009, available at www.nysba.orq, (hereinafter referred to as Task Force Final Report) at pages 5-6,

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. Task Force Final Report at 45. 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. Id. Nor does the appellate process provide effective corrective measures. Id. at 46-49. 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 reliability 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 BO. The bill also provides sanctions for failure to comply with the mandated procedures.

Prior legislative history

None. New bill.

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.