HOUSE BILL 396
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Joseph Cervantes
FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO LAW ENFORCEMENT; ENACTING THE RELIABLE EYEWITNESS IDENTIFICATION ACT; PROVIDING PROCEDURES FOR LINEUPS; REQUIRING EYEWITNESS STATEMENTS; REQUIRING THAT RECORDS BE KEPT OF LINEUP PROCEDURES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Reliable Eyewitness Identification Act".
Section 2. DEFINITIONS.--As used in the Reliable Eyewitness Identification Act:
A. "administrator" means a person who conducts a lineup procedure;
B. "eyewitness" means a person whose identification of another person may be relevant in a criminal investigation or proceeding;
C. "lineup" means a series of persons or photographs shown to an eyewitness for the purpose of determining whether the eyewitness can identify the subject;
D. "member" means a person or a photograph that is included in a lineup;
E. "subject" means a person relevant to a criminal investigation who was seen by an eyewitness and who is sought to be identified through a lineup; and
F. "suspect" means a person who is believed to be the subject.
Section 3. LINEUP PROCEDURE.--
A. Unless otherwise required by the age, disability or language needs of the eyewitness, only an administrator shall be present with an eyewitness during a lineup procedure as provided in this section, except that a suspect's attorney may be present during a lineup of persons. No other person shall be in a position to be seen or heard by the eyewitness during the lineup procedure.
B. The administrator shall:
(1) during a lineup of persons, not know who among the members is a suspect; or
(2) during a lineup of photographs, use a procedure whereby the administrator does not know which photograph the eyewitness is viewing at any given time.
C. Prior to being shown a lineup, and as close in time to the incident as possible, an eyewitness shall give, in the eyewitness's own words, a description of the subject and a description of the circumstances under which the subject was seen by the eyewitness, including the time of day, the length of time the subject was seen, the distance from the eyewitness to the subject and the lighting conditions. The description may be recorded or transcribed or written by the eyewitness.
D. Prior to a lineup, an eyewitness shall be instructed that:
(1) the eyewitness should not feel compelled to make an identification;
(2) the subject may not be among the members of the lineup;
(3) the eyewitness may take as much time as the eyewitness wants to view lineup; and
(4) an identification, or a lack of identification, will not end the investigation.
E. No more than one suspect shall be included in a lineup.
F. A live lineup shall consist of at least six persons.
G. A photo lineup shall consist of at least ten photographs. No more than one photograph of the suspect shall be included in the photo lineup.
H. Members of a lineup shall be shown sequentially so that an eyewitness views only one member at a time and expresses an opinion as to that member before seeing the next member. The eyewitness shall be shown all of the members included in the lineup sequentially even if an identification has been made before all of the members have been viewed by the eyewitness.
I. A member of a lineup shall generally fit the description of the subject, and no member shall unduly stand out from other members of the lineup.
J. Except as provided in Section 4 of the Reliable Eyewitness Identification Act, a suspect or a photograph of a suspect shall not be presented to an eyewitness for the purpose of identification unless the suspect or photograph is included in a lineup.
K. Immediately after a lineup, an eyewitness shall complete a form describing the eyewitness's reactions to the lineup procedure, any identification made by the eyewitness and the degree of confidence felt by the eyewitness in making an identification. If an eyewitness is unable to complete the form in writing, the eyewitness shall be recorded while orally providing the information required by the form. No information or suggestion concerning the correctness of the identification shall be communicated to the eyewitness.
L. A complete audio and visual recording shall be made of each lineup procedure and shall include:
(1) all of the members in the lineup;
(2) all of the persons present during the lineup procedure;
(3) any remarks or actions made during the lineup procedure;
(4) any reactions by the eyewitness; and
(5) the eyewitness giving a description pursuant to Subsection C of this section and completing the form pursuant to Subsection K of this section.
M. An administrator shall comply with the provisions of Subsection L of this section unless the administrator has good cause and makes a contemporaneous written or electronic record of the reasons for not complying. Good cause includes:
(1) the recording equipment was not reasonably available; or
(2) the recording equipment failed and obtaining replacement equipment was not feasible.
Section 4. IDENTIFICATION OUTSIDE A LINEUP.--
A. A suspect may not be shown to an eyewitness outside a lineup procedure for the purpose of identification unless:
(1) the suspect is shown within three hours after the subject was seen by the eyewitness;
(2) initial information pursuant to Subsection C of Section 3 of the Reliable Eyewitness Identification Act is obtained from the eyewitness;
(3) the suspect fits the description of the subject described by the witness;
(4) the suspect was found in close proximity in time and place to the event seen by the eyewitness; and
(5) it is not feasible to conduct a lineup procedure.
B. All requirements for identification outside a lineup procedure as set forth in this section shall be documented and preserved.
Section 5. PRESERVATION OF RECORD.--A record of a lineup procedure shall be made that includes:
A. the date, time and location of the lineup procedure;
B. the names of all persons present during the lineup procedure;
C. the names of the members of the lineup and the sequence in which the members were shown to the eyewitness;
D. copies of all photographs used in the lineup, if any, and the sources of all photographs used;
E. identification and nonidentification results obtained during the procedure and signed by the eyewitness;
F. the information provided by the eyewitness pursuant to Subsections C and K of Section 3 of the Reliable Eyewitness Identification Act; and
G. the recording made pursuant to Subsection L of Section 3 of the Reliable Eyewitness Identification Act.
Section 6. APPLICABILITY.--The provisions of the Reliable Eyewitness Identification Act do not apply to lineup procedures conducted outside of New Mexico and do not apply within a correctional facility.
Section 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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