[§801K-3] Eyewitness identification procedures for showups.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)The administrator shall comply with the following in conducting a showup:

(1)Where possible, the administrator shall perform a live lineup or photo lineup instead of a showup;

(2)A showup shall only be performed using a live suspect and only in exigent circumstances that require the immediate display of a suspect to an eyewitness;

(3)All showups shall be conducted blind unless to do so would place an undue burden on law enforcement or the investigation;

(4)An administrator shall not conduct a showup with a photograph. If investigators wish to determine if an eyewitness can make an identification using a photograph, a photo lineup shall be used;

(5)Prior to any showup, 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 record 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;

(6)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 witnessing the offense. The administrator shall note whether the eyewitness was wearing glasses or contact lenses at the time of the identification procedure;

(7)The eyewitness shall be transported to a neutral, non-law enforcement location where the suspect is being detained for the purposes of a showup;

(8)The eyewitness shall be instructed, without other eyewitnesses present, prior to any showup that:

(A)The suspect may or may not be the person that is presented to the eyewitness;

(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)At any showup, in order to reduce potentially damaging or prejudicial inferences that may be drawn by the eyewitness, the administrator shall:

(1)Refrain from suggesting, through statements or nonverbal conduct, that the suspect is or may be the perpetrator of the crime;

(2)Refrain from removing the suspect from a squad car in front of the eyewitness; and

(3)When practicable, present the suspect to the eyewitness without handcuffs.

(c)When there are multiple eyewitnesses, the following procedure shall apply:

(1)Only one eyewitness at a time shall be present at the location of the showup to participate in the showup; and

(2)If a positive identification is made and an arrest is justified, subsequent eyewitnesses shall be shown live lineups or photo lineups.

(d)If there are multiple suspects, the suspects shall be separated and participate in separate showups.

(e)If an eyewitness makes an identification, the administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness' own words.

(f)The administrator shall photograph each suspect or cause the suspect to be photographed at the time and place of the showup to preserve a record of the appearance of the suspect at the time of the showup.

(g)When it is impracticable for a blind administrator to conduct a showup, the investigator shall state in writing the reason therefor. [L 2019, c 281, pt of §2]