HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 295
48th legislature - STATE OF NEW MEXICO - first session, 2007
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 felony 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 age, disability or the language needs of the eyewitness, only an administrator shall be present with an eyewitness during the lineup procedure 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) 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 member is being shown to the eyewitness.
C. Prior to being shown a lineup, and as close in time to the incident as possible, an eyewitness shall give a description of the subject and 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 shall be recorded or written.
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; and
(3) 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 and not simultaneously in a first viewing 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 the members included in the lineup sequentially even if an identification has been made before all members have been viewed by the eyewitness. Thereafter, upon the request of the eyewitness, the lineup may be shown simultaneously.
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. No information or suggestion concerning the correctness of the identification shall be communicated to the eyewitness.
L. Immediately after a lineup, an eyewitness shall describe 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. The description shall be recorded or written.
M. 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 Subsections C and 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;
(2) the recording equipment failed and obtaining replacement equipment was not feasible; or
(3) the witness refused to be recorded.
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) considering the totality of the circumstances, the suspect was found in reasonable 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 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.--The provisions of the Reliable Eyewitness Identification Act shall not be construed to exclude otherwise admissible evidence in any judicial proceeding.
Section 7. APPLICABILITY.--
A. The provisions of the Reliable Eyewitness Identification Act shall apply unless a law enforcement agency has good cause and makes a contemporaneous written or electronic record of the reasons for not complying.
B. 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 8. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2008.
- 7 -