Relates to identifications by witnesses and the recording of interrogations

The Chief Judge commissioned the Justice Task Force in 2009 to "eradicate the systemic and individual harms caused by wrongful convictions, and to promote public safety by examining the causes of wrongful convictions and recommending reforms to safeguard against any such convictions in the future." Co-chaired by a Judge of the Court of Appeals and the current President of the New York State District Attorneys Association, with bipartisan representation from both Houses of the Legislature, the Executive Branch, police agencies, the Bar, appellate and trial judges, academicians and victim rights' advocates, the Justice Task Force has worked to develop a balanced and practical approach to identifying and redressing recurring practices that contribute to wrongful convictions without intruding on investigational and prosecutorial autonomy under our Constitution and laws. Two of the Task Force's recommendations, calling for expansion of the State's DNA Databank and providing criminal defendants with greater access to post-conviction DNA testing, were enacted into law in 2012. See L. 2012, c. 19. This measure is submitted to implement two further Task Force recommendations.

Admission into evidence of pretrial identifications of the defendant

The Task Force found that mistaken eyewitness identification is a leading cause of wrongful convictions. It is therefore essential to redress the most likely triggers for mistaken identification, both to enhance the accuracy of the criminal justice system, and to protect public safety compatibly with the administration of justice. To that end, the Task Force reached consensus on a number of best practices relating to witness instruction, confidence statements, identification procedures and live lineups.

Legislation is needed, however, to foster enhancement of the reliability of photo identifications so that such identifications - long barred from criminal trials under most circumstances - could be admitted into evidence at trial.

Accordingly, the instant measure would effectuate the Justice Task Force's recommendation that double-blind ("blind") administration of a photo array (i.e. where the person administering the array does not know who the accused is) sufficiently promotes the reliability of identifications to admit such evidence at trial. The measure also reflects the view, based on operational experience and academic

research, that where double-blind administration is impracticable, single-blind ("blinded") administration of a photo array (i.e., where the person administering the array knows who the accused is but does not know where the accused's picture appears in the array) also can sufficiently enhance the accuracy of identifications to justify admissibility. Under either of these limited circumstances, strictly defined in statute, a witness's identification of the accused in a pictorial, photographic, electronic, filmed or video recorded reproduction would become admissible at trial. This measure would apply in both criminal courts and Family Court juvenile delinquency proceedings, and where a public servant administers an array either by hand or with the aid of computer software (e.g. Photo Manager) to shuffle the array in a manner that is blind to the array administrator at the time of the test. To achieve the foregoing, sections one and two of this measure would make appropriate revisions in CPL 60.25 and CPL 60.30, respectively, to authorize admission of photo identifications pursuant to a double-blind process or a single-blind process where it is impracticable for the array administrator not to know who the accused is.

Section three would amend CPL 710.20(6) to authorize a motion to suppress evidence of an eyewitness identification based on a pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant not made consistent with the procedures outlined in this measure.

Section four would amend CPL 710.30(1) to require that where the People intend to use evidence of an eyewitness identification based on a pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant, the People must serve on the defendant a notice of such intention.

Section five would amend the Executive Law to require the Municipal Police Training Council to adopt a model policy to help guide law enforcement officials in conducting photographic and live lineups.

Sections six and seven would amend Family Court Act sections 343.3 and 343.4, respectively, to authorize admission of image-assisted identifications consistent with the corresponding amendments to CPL 60.25 and 60.30 in sections one and two of the bill.

Recording of custodial interrogations

The Justice Task Force concluded that video recording of custodial interrogations, which some prosecutors and police agencies now undertake voluntarily, can substantially diminish the incidence of wrongful convictions. The recording of a confession and its physical circumstances helps vitiate reasonable questions as to the voluntariness of the confession, strongly discouraging tactics that could be perceived as unduly coercive.

In drawing this conclusion, the Task Force was well aware of the need for operational practicality in enforcing any video-recording requirement. The Task Force recognizes that implementing this change for all interrogations could raise substantial questions about costs and may have unintended consequences that impair the effective operation of the criminal justice system. The Task Force also

recognizes that some custodial confessions occur under circumstances in which it may be impractical to ensure a video recording, and that disallowing admission of a freely-given confession under those circumstances also would impair the effective administration of the criminal justice system. Given the primary goal of promoting the accuracy of convictions, an over-broad reform might do more harm than good.

Reflecting these various considerations, the Justice Task Force recommends a balanced approach by which the video-recording requirement would apply only for confessions, admissions or other statements relating to crimes constituting A-1 non-drug felonies, and violent B felonies codified by Penal Law article 125 (homicide) or article 130 (sex offenses), and only where the confessions, admissions or other statements occur in a detention facility pursuant to a custodial interrogation.

Also reflecting the overriding need for practicality given the fast-paced and fluid environments in which confessions occur, the Justice Task Force recommends a broad range of good-faith explanations by which the People may justify not video recording a covered confession. Where the People offer such a good-faith justification, the failure to record would be excused and the confession would be admissible notwithstanding the lack of a video recording. Such good-faith justifications would include, but not be limited to:

*Malfunction or other inadvertent equipment error that prevents or interrupts recording;

*Unavailability of the equipment because it was otherwise being used at the time of the confession;

*Defendant's refusal to make a confession if recorded, or the defendant's request that it not be recorded, if such refusal or request is in writing signed by the defendant or otherwise memorialized by him or her (unless he or she declines to sign such a statement);

*The People's reasonable belief that such video recording would jeopardize the safety of any person or reveal the identity of a confidential informant; and

*The public servant having custody of the defendant reasonably believe, at the time of the defendant's confession, that it would not relate to the defendant's participation or lack of participation in an offense to which the recording requirement would apply.

If the People fail to video record a covered confession without a good-faith justification, the court still could admit the confession into evidence, but the court would need to instruct the jury, at the defendant's request, to weigh this failure as a factor in determining the voluntariness of the confession.

To accomplish the foregoing balanced approach compatibly with administering New York's large and diverse criminal justice system, section eight of this measure would add a new subdivision 3 to CPL 60.45 to require the video recording of a defendant's confession,

admission or other statement, where the crime to which the defendant confesses constitutes an A-1 non-drug felony, or a violent B felony codified by Penal Law article 125 (homicide) or article 130 (sex offenses). This requirement would apply only where, pursuant to custodial interrogation, the defendant makes a confession, admission or other statement in a proper detention facility (as defined in the measure). This new subdivision would set forth a non-exclusive list of good-faith justifications for the failure to video record a covered confession.

Section nine of this measure would amend CPL 710.70 to provide that a court could admit a covered confession despite the failure to video record it without good-faith justification provided that, upon defendant's request, the court would need to issue an appropriate instruction that the jury could weigh the failure to record as a factor in determining the voluntariness of the confession.

Section ten of this measure would renumber subdivision 3 of Family Court Act section 344.2 to subdivision 4 and add a new subdivision 3 that parallels the video recording provision of CPL 60.45(3), as added by section seven of this measure. This subdivision would apply where any presentment agency seeks to admit evidence of a covered confession made pursuant to custodial interrogation.

Section eleven would make this act effective immediately except that the provisions of sections seven through nine, relating to the recording of a defendant's statements while in custody, shall take effect on the first day of November in the year succeeding the year in which this act shall have become a law.

2013 Legislative History:

Senate 4484-A (Senator Nozzolio) (Codes) Assembly 6800-A (M. of A. Lentol) (Codes)