State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_15A > GS_15A-284_52

§ 15A‑284.52. Eyewitness identification reform.

(a)        Definitions. – Thefollowing definitions apply in this Article:

(1)        Eyewitness. – Aperson whose identification by sight of another person may be relevant in acriminal proceeding.

(2)        Filler. – A personor a photograph of a person who is not suspected of an offense and is includedin a lineup.

(3)        Independentadministrator. – A lineup administrator who is not participating in theinvestigation of the criminal offense and is unaware of which person in thelineup is the suspect.

(4)        Lineup. – A photolineup or live lineup.

(5)        Lineupadministrator. – The person who conducts a lineup.

(6)        Live lineup. – Aprocedure in which a group of people is displayed to an eyewitness for thepurpose of determining if the eyewitness is able to identify the perpetrator ofa crime.

(7)        Photo lineup. – Aprocedure in which an array of photographs is displayed to an eyewitness forthe purpose of determining if the eyewitness is able to identify theperpetrator of a crime.

(b)        EyewitnessIdentification Procedures. – Lineups conducted by State, county, and otherlocal law enforcement officers shall meet all of the following requirements:

(1)        A lineup shall beconducted by an independent administrator or by an alternative method asprovided by subsection (c) of this section.

(2)        Individuals orphotos shall be presented to witnesses sequentially, with each individual orphoto presented to the witness separately, in a previously determined order,and removed after it is viewed before the next individual or photo ispresented.

(3)        Before a lineup, theeyewitness shall be instructed that:

a.         The perpetratormight or might not be presented in the lineup,

b.         The lineupadministrator does not know the suspect's identity,

c.         The eyewitness shouldnot feel compelled to make an identification,

d.         It is as importantto exclude innocent persons as it is to identify the perpetrator, and

e.         The investigationwill continue whether or not an identification is made.

Theeyewitness shall acknowledge the receipt of the instructions in writing. If theeyewitness refuses to sign, the lineup administrator shall note the refusal ofthe eyewitness to sign the acknowledgement and shall also sign theacknowledgement.

(4)        In a photo lineup,the photograph of the suspect shall be contemporary and, to the extentpracticable, shall resemble the suspect's appearance at the time of theoffense.

(5)        The lineup shall becomposed so that the fillers generally resemble the eyewitness's description ofthe perpetrator, while ensuring that the suspect does not unduly stand out fromthe fillers. In addition:

a.         All fillers selectedshall resemble, as much as practicable, the eyewitness's description of theperpetrator in significant features, including any unique or unusual features.

b.         At least fivefillers shall be included in a photo lineup, in addition to the suspect.

c.         At least fivefillers shall be included in a live lineup, in addition to the suspect.

d.         If the eyewitnesshas previously viewed a photo lineup or live lineup in connection with theidentification of another person suspected of involvement in the offense, thefillers in the lineup in which the current suspect participates shall bedifferent from the fillers used in any prior lineups.

(6)        If there are multipleeyewitnesses, the suspect shall be placed in a different position in the lineupor photo array for each eyewitness.

(7)        In a lineup, nowritings or information concerning any previous arrest, indictment, orconviction of the suspect shall be visible or made known to the eyewitness.

(8)        In a live lineup,any identifying actions, such as speech, gestures, or other movements, shall beperformed by all lineup participants.

(9)        In a live lineup,all lineup participants must be out of view of the eyewitness prior to thelineup.

(10)      Only one suspectshall be included in a lineup.

(11)      Nothing shall be saidto the eyewitness regarding the suspect's position in the lineup or regardinganything that might influence the eyewitness's identification.

(12)      The lineup administratorshall seek and document a clear statement from the eyewitness, at the time ofthe identification and in the eyewitness's own words, as to the eyewitness'sconfidence level that the person identified in a given lineup is theperpetrator. The lineup administrator shall separate all witnesses in order todiscourage witnesses from conferring with one another before or during theprocedure. Each witness shall be given instructions regarding theidentification procedures without other witnesses present.

(13)      If the eyewitnessidentifies a person as the perpetrator, the eyewitness shall not be providedany information concerning the person before the lineup administrator obtainsthe eyewitness's confidence statement about the selection. There shall not beanyone present during the live lineup or photographic identification procedureswho knows the suspect's identity, except the eyewitness and counsel as requiredby law.

(14)      Unless it is notpractical, a video record of live identification procedures shall be made. If avideo record is not practical, the reasons shall be documented, and an audiorecord shall be made. If neither a video nor audio record are practical, thereasons shall be documented, and the lineup administrator shall make a writtenrecord of the lineup.

(15)      Whether video, audio,or in writing, the record shall include all of the following information:

a.         All identificationand nonidentification results obtained during the identification procedure,signed by the eyewitness, including the eyewitness's confidence statement. Ifthe eyewitness refuses to sign, the lineup administrator shall note the refusalof the eyewitness to sign the results and shall also sign the notation.

b.         The names of allpersons present at the lineup.

c.         The date, time, andlocation of the lineup.

d.         The words used bythe eyewitness in any identification, including words that describe theeyewitness's certainty of identification.

e.         Whether it was aphoto lineup or live lineup and how many photos or individuals were presentedin the lineup.

f.          The sources of allphotographs or persons used.

g.         In a photo lineup,the photographs themselves.

h.         In a live lineup, aphoto or other visual recording of the lineup that includes all persons whoparticipated in the lineup.

(c)        Alternative Methodsfor Identification if Independent Administrator Is Not Used. – In lieu of usingan independent administrator, a photo lineup eyewitness identificationprocedure may be conducted using an alternative method specified and approvedby the North Carolina Criminal Justice Education and Training StandardsCommission. Any alternative method shall be carefully structured to achieveneutral administration and to prevent the administrator from knowing whichphotograph is being presented to the eyewitness during the identificationprocedure. Alternative methods may include any of the following:

(1)        Automated computerprograms that can automatically administer the photo lineup directly to aneyewitness and prevent the administrator from seeing which photo the witness isviewing until after the procedure is completed.

(2)        A procedure in whichphotographs are placed in folders, randomly numbered, and shuffled and thenpresented to an eyewitness such that the administrator cannot see or trackwhich photograph is being presented to the witness until after the procedure iscompleted.

(3)        Any other proceduresthat achieve neutral administration.

(d)        Remedies. – All ofthe following shall be available as consequences of compliance or noncompliancewith the requirements of this section:

(1)        Failure to complywith any of the requirements of this section shall be considered by the courtin adjudicating motions to suppress eyewitness identification.

(2)        Failure to complywith any of the requirements of this section shall be admissible in support ofclaims of eyewitness misidentification, as long as such evidence is otherwiseadmissible.

(3)        When evidence ofcompliance or noncompliance with the requirements of this section has beenpresented at trial, the jury shall be instructed that it may consider credibleevidence of compliance or noncompliance to determine the reliability ofeyewitness identifications. (2007‑421, s. 1.)