Section 16-1-109 - Eyewitness identification procedures - policies and procedures - training - admissibility - report - legislative declaration - definitions(1) The general assembly finds and declares that:(a) Over the past forty years, a large body of peer-reviewed scientific research and practice has demonstrated that simple systematic changes in the administration of eyewitness identification procedures by all law enforcement agencies can greatly improve the accuracy of those identifications and strengthen public safety while protecting the innocent;(b) The integrity of Colorado's criminal justice system benefits from adherence to peer-reviewed research-based practices in the investigation of criminal activity; and(c) Colorado will benefit from the development and use of written law enforcement policies that are derived from peer-reviewed scientific research and research-based practices, which will ultimately improve the accuracy of eyewitness identification and strengthen the criminal justice system in Colorado.(2) As used in this section, unless the context otherwise requires:(a) "Blind" means the administrator of a live lineup, photo array, or showup does not know the identity of the suspect.(b) "Blinded" means the administrator of a live lineup, photo array, or showup may know who the suspect is but does not know in which position the suspect is placed in the photo array when it is viewed by the eyewitness.(c) "Eyewitness" means a person who observed another person at or near the scene of an offense.(d) "Filler" means either a person or a photograph of a person who is not suspected of the offense in question and is included in an identification procedure.(e) "Live lineup" means an identification procedure in which a group of persons, including the suspected perpetrator of an offense and other persons who are not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.(f) "Peace officers standards and training board" or "P.O.S.T. board" means the board created in section 24-31-302, C.R.S., for the certification of peace officers in Colorado.(g) "Photo array" means an identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons who are not suspected of the offense, is displayed to an eyewitness either in hard copy form or via electronic means for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.(h) "Showup" means an identification procedure in which an eyewitness is presented with a single subject in person for the purpose of determining whether the eyewitness identifies the individual as the suspect.(3)(a) On or before November 15, 2021, any Colorado law enforcement agency that employs a peace officer required to be P.O.S.T.-certified pursuant to section 16-2.5-102, that is charged with enforcing the criminal laws of Colorado, and that, as part of any criminal investigation, uses or might use any eyewitness identification procedure shall adopt written policies and procedures concerning law-enforcement-conducted eyewitness identifications. The policies and procedures adopted and implemented by a law enforcement agency must be consistent with eyewitness identification procedures of nationally recognized peer-reviewed research and must be consistent with the requirements of section 16-1-110 for admissibility of evidence of eyewitness identification. The attorney general, the Colorado district attorneys' council, representatives of law enforcement, and representatives of the state public defender office, in consultation with an organization that is familiar with the research regarding eyewitness identification and supports the exoneration of persons who have been wrongfully convicted, shall develop and recommend a set of model policies and procedures that are consistent with the requirements of this section and section 16-1-110 and update the policies and procedures as necessary. The policies and procedures must include, but need not be limited to, the following: (I) Protocols guiding the use of a showup;(II) Protocols guiding the recommended use of a blind administration of both photo arrays and live lineups or the recommended use of a blinded administration of the identification process when circumstances prevent the use of a blind administration;(III) The development of a set of easily understood instructions for eyewitnesses that, at a minimum, advise the eyewitness that the alleged perpetrator may or may not be present in the photo array or live lineup and that the investigation will continue whether or not the eyewitness identifies anyone as the alleged perpetrator in the photo array or live lineup;(IV) Instructions to the law enforcement agency regarding the appropriate choice and use of fillers in compiling a live lineup or photo array, including ensuring that fillers match the original description of the perpetrator; and(V) Protocols regarding the documentation of the eyewitness' level of confidence as elicited at the time he or she first identifies an alleged perpetrator or other person and memorialized verbatim in writing.(c) Local law enforcement policies and procedures relating to eyewitness identification are public documents. All such policies and procedures must be available, without cost, to the public upon request pursuant to the provisions of this section.(d) Subject to available resources, law enforcement shall create, conduct, or facilitate professional training programs for law enforcement officers and other relevant personnel on methods and technical aspects of eyewitness identification policies and procedures. While these training programs shall be approved by the P.O.S.T. board, any programs may be created, provided, and conducted by any law enforcement agency, the office of the attorney general, the Colorado district attorneys' council, or any other P.O.S.T-approved training entity.(4) Policies and procedures adopted and implemented by a law enforcement agency pursuant to this section must be reviewed by the agency at least every five years to ensure the policies and procedures are updated to include best practices recognized by nationally recognized peer-reviewed research.(5) Compliance or failure to comply with any of the requirements of this section and the requirements of section 16-1-110 is considered relevant evidence in any case involving eyewitness identification, as long as such evidence is otherwise admissible.(6) Beginning January 1, 2022, each law enforcement agency that uses a showup shall collect the following data related to those identification techniques:(a) The date, time, and location of the showup;(b) The gender, age, and race of the subject and eyewitness in the showup, as determined by the law enforcement officer's perception or the subject's identification or retrieved from a database accessible by law enforcement;(c) The alleged crime; and(d) The outcome of the showup.Amended by 2021 Ch. 312, § 2, eff. 9/7/2021 and applicable to showups conducted on or after 1/1/2022.Added by 2015 Ch. 110, § 1, eff. 7/1/2015.L. 2015: Entire section added, (SB 15 -058), ch. 321, p. 321, § 1, effective July 1. L. 2021: (2)(h), IP(3)(a), (4), and (5) amended, (3)(b) repealed, and (6) added, (HB 21-1142), ch. 1902, p. 1902, § 2, effective September 7.Section 5(2) of chapter 312 (HB 21-1142), Session Laws of Colorado 2021, provides that the act changing this section applies to showups conducted on or after January 1, 2022.
2021 Ch. 312, was passed without a safety clause. See Colo. Const. art. V, § 1(3). For the legislative declaration in HB 21-1142, see section 1 of chapter 312, Session Laws of Colorado 2021.