HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 396
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO LAW ENFORCEMENT; ENACTING THE RELIABLE EYEWITNESS IDENTIFICATION ACT; PROVIDING PROCEDURES FOR LINEUPS AND PHOTO ARRAYS; REQUIRING EYEWITNESS STATEMENTS; REQUIRING THAT RECORDS BE KEPT OF LINEUP AND PHOTO ARRAY 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 or photo array 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 live persons 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 or photo array;
E. "photo array" means a series of photographs shown to an eyewitness for the purpose of determining whether the eyewitness can identify the subject;
F. "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 or photo array; and
G. "suspect" means a person who is believed to be the subject.
Section 3. LINEUP OR PHOTO ARRAY PROCEDURE.--
A. A state or local law enforcement officer shall comply with the lineup or photo array procedures when reasonably able to do so.
B. Unless otherwise required by the age, disability, emotional trauma or language needs of the eyewitness, only an administrator shall be present with an eyewitness during a lineup or photo array procedure as provided in this section, except that a suspect's attorney may be present during a lineup of live persons. No other person shall be in a position to be seen or heard by the eyewitness during the lineup or photo array procedure.
C. The administrator shall:
(1) during a lineup of live persons, not know who among the members is a suspect; or
(2) during a photo array, use a procedure whereby the administrator does not know which photograph the eyewitness is viewing at any given time.
D. Prior to being shown a lineup or photo array, 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.
E. Prior to a lineup or photo array, an eyewitness shall be instructed that:
(1) the eyewitness should not feel compelled to make an identification;
(2) the subject may or may not be among the members of the lineup or photo array;
(3) the eyewitness may take as much time as the eyewitness wants to view the lineup or photo array; and
(4) an identification, or a lack of identification, will not necessarily end the investigation.
F. No more than one suspect shall be included in a lineup or photo array.
G. A live lineup shall consist of at least six persons.
H. A photo array shall consist of eight photographs if possible, but no fewer than six photographs. No more than one photograph of the suspect shall be included in the photo array.
I. Members of a lineup or photo array shall be shown in one but not both of the following ways:
(1) 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 or photo array sequentially even if an identification has been made before all of the members have been viewed by the eyewitness; or
(2) simultaneously so that an eyewitness views all of the members included in the lineup or photo array at the same time.
J. A member of a lineup or photo array shall generally fit the description of the subject, and no member shall unduly stand out from other members of the lineup or photo array.
K. 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 or photo array.
L. Immediately after a lineup or photo array, an eyewitness shall complete a form describing the eyewitness's reactions to the lineup or photo array 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 one present at the lineup or photo array procedure shall communicate to the eyewitness any information or suggestion concerning the correctness of the identification.
M. A complete audio and visual recording shall be made of each lineup or photo array procedure and shall include:
(1) all of the members in the lineup or photo array;
(2) all of the persons present during the lineup or photo array procedure;
(3) any remarks or actions made during the lineup or photo array procedure;
(4) any reactions by the eyewitness; and
(5) the eyewitness giving a description pursuant to Subsection D of this section and completing the form pursuant to Subsection L of this section.
N. An administrator shall comply with the provisions of Subsection M 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 OR PHOTO ARRAY.--
A. A suspect may not be shown to an eyewitness outside a lineup or photo array procedure for the purpose of identification unless:
(1) the suspect is shown within a reasonable time 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 reasonably possible to conduct a lineup or photo array procedure.
B. All requirements for identification outside a lineup or photo array procedure as set forth in this section shall be documented and preserved.
Section 5. PRESERVATION OF RECORD.--A record of a lineup or photo array procedure shall be made that includes:
A. the date, time and location of the lineup or photo array procedure;
B. the names of all persons present during the lineup or photo array procedure;
C. the names of the members of the lineup or photo array and the sequence in which the members were shown to the eyewitness;
D. copies of all photographs used in a photo array, 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 D and L of Section 3 of the Reliable Eyewitness Identification Act; and
G. the recording made pursuant to Subsection M of Section 3 of the Reliable Eyewitness Identification Act.
Section 6. ADMISSIBILITY OF EVIDENCE.--Compliance with the Reliable Eyewitness Identification Act shall not solely determine the admissibility of evidence.
Section 7. APPLICABILITY.--The provisions of the Reliable Eyewitness Identification Act do not apply to lineup or photo array procedures conducted outside of New Mexico and do not apply within a correctional facility.
Section 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
- 8 -