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

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 Proce- dure 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 iden- tification procedures are conducted fairly and with a reduced possibil- ity of misidentification. Absent exigent circumstances, the proceedings involving eyewitness identification procedures should he 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 horri- ble 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 prose- cution.

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-re- viewed 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 Eyewit- ness 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 govern- ments 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. Erro- neous 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., (CAZEA), a credentialing authority through the joint efforts of law enforcement's major executive associations -- IACP; National Organ- ization of Black Law Enforcement Executives (NOBLE); National Sheriffs' Association (NSA); and the Police Executive Research Forum (PERE) -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 compo- sition, 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 offi- cially 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 Conduct- ing Photo and Live Lineup Identification Procedures mandating implemen- tation 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 Caro- lina 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 legisla- ture 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 presen- tation of lineups, this amended legislation does not require such a procedural change, while not precluding the possibility of future legis- lation that does

Prior legislative history

2011-12: S.1099/A.1683 - Referred to Codes 2009-10: S.4292A/A.4215A - Referred to Codes/Referred to Codes 2007-08: A.925 2005-06: A.772 2003-04: A.634 2001-02: A/9578-A

Fiscal implications

Minimal.

Effective date

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