Section 801K-2 - Eyewitness identification procedures for live lineups and photo lineups(a) Any law enforcement entity conducting eyewitness identification procedures shall adopt specific procedures for conducting photo lineups and live lineups that comply with the following requirements: (1) Prior to a photo lineup or live lineup, law enforcement shall record in writing as complete a description as possible of the possible perpetrator provided by the eyewitness in the eyewitness' own words. This statement shall also include information regarding the conditions under which the eyewitness observed the possible perpetrator including location, time, distance, obstructions, lighting, weather conditions, and other impairments, including but not limited to alcohol, drugs, stress, and visual or auditory disabilities;(2) The eyewitness shall also be asked if the eyewitness' vision needs correction by glasses or contact lenses and whether the eyewitness was wearing them at the time of the offense. The administrator shall note whether the eyewitness was wearing glasses or contact lenses at the time of the identification procedure;(3) All live lineups and photo lineups shall be conducted blind unless to do so would place an undue burden on law enforcement or the investigation; and(4) The eyewitness shall be instructed, without other eyewitnesses present, prior to any live lineup or photo lineup, that: (A) The suspect may or may not be among the persons in the identification procedure;(B) The administrator does not know the identity of the suspect, if applicable;(C) The eyewitness should not feel compelled to make an identification;(D) The investigation will continue whether or not an identification is made;(E) The procedure requires the administrator to ask the eyewitness to make a statement, in the eyewitness' own words, if the eyewitness makes an identification; and(F) Speaking with other witnesses or the media may hinder prosecution.(b) The administrator shall comply with the following: (1) In a photo lineup, any photograph of the suspect shall be contemporary and shall resemble the suspect's appearance at the time of the offense;(2) In a photo lineup, there shall be no characteristics of the photographs themselves or the background context in which they are placed that makes any of the photographs unduly stand out;(3) A photo lineup or live lineup shall be composed so that the fillers generally resemble the eyewitness' description of the possible perpetrator, while ensuring that the suspect does not unduly stand out from the fillers;(4) In a photo lineup or live lineup, the administrator shall comply with the following: (A) All fillers selected shall resemble the eyewitness' description of the possible perpetrator in significant features including but not limited to face, weight, build, and skin tone;(B) At least five fillers shall be included in a photo lineup in addition to the suspect;(C) At least four fillers shall be included in a live lineup in addition to the suspect; and(D) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the instant suspect participates shall be different from the fillers used in any prior lineups;(5) In a live lineup, no identifying actions, such as speech, gestures, or other movements, shall be performed by lineup participants;(6) In a live lineup, all lineup participants shall be out of view of the eyewitness prior to the identification procedure;(7) In a photo lineup or live lineup, nothing shall be said to the eyewitness regarding the suspect's position in the lineup; and(8) In a photo lineup or live lineup, nothing shall be said to the eyewitness that might influence the eyewitness' identification of any particular lineup member.(c) If there are multiple eyewitnesses, the administrator shall comply with the following: (1) Each eyewitness shall view photo lineups or live lineups separately;(2) The suspect shall be randomly positioned in the live lineup or photo lineup for each eyewitness; and(3) The eyewitnesses shall not be permitted to communicate with each other until all identification procedures have been completed.(d) In any identification procedure, no writings or information concerning the current investigation or any previous arrest, indictment, or conviction of the suspect shall be visible or made known to an eyewitness.(e) When there are multiple suspects, each identification procedure shall include only one suspect.(f) In any identification procedure where an eyewitness makes an identification, the administrator shall seek and document a clear statement from the eyewitness at the time of the identification in the eyewitness' own words.(g) In any identification procedure where an eyewitness makes an identification, the eyewitness shall not be provided with any information concerning the person identified before the administrator obtains the eyewitness' statement about the identification.(h) Law enforcement shall make a record of each identification procedure, including all identification and non-identification results obtained, undertaken during all investigations. Each identification procedure record shall be signed by the relevant eyewitness.(i) When it is impracticable for a blind administrator to conduct a lineup, the investigator shall state in writing, in the identification procedure record, the reason therefor.Added by L 2019, c 281,§ 2, eff. 6/1/2020.