2023 New Mexico Statutes
Chapter 29 - Law Enforcement
Article 3B - Accurate Eyewitness Identification
Section 29-3B-3 - Eyewitness identification procedures.
A. Not later than January 1, 2020, a criminal justice entity conducting eyewitness identification procedures shall adopt and comply with written policies for using an eyewitness to make a decision about whether a suspect is the perpetrator of a crime upon viewing the suspect in person in a live lineup or showup or upon viewing a representation of the suspect in a photo lineup.
B. Each governmental entity in New Mexico that administers eyewitness identification procedures shall provide a copy of its written policies to the secretary of public safety no later than February 1, 2020 and the secretary shall make those policies available to the public.
C. A law enforcement agency shall biennially review policies adopted pursuant to this section to incorporate new scientifically supported protocols.
D. In developing and revising policies pursuant to this section, a law enforcement agency shall adopt those practices shown by reliable evidence to enhance the accuracy of identification procedures. Each governmental entity in New Mexico that administers eyewitness identification procedures shall submit its updated written policies to the secretary of public safety no later than February 1 of each odd-numbered year.
E. A law enforcement agency shall include in policies adopted pursuant to this section practices to enhance the objectivity and reliability of eyewitness identifications and to minimize the possibility of mistaken identifications, including the following:
(1) having a blind administrator or blinded administrator perform the live lineup or photo lineup;
(2) documenting a description of the suspect provided by the eyewitness, including a description of the circumstances under which the suspect was seen by the eyewitness, the time of day, the length of time the suspect was seen, the perceived or actual distance from the eyewitness to the suspect and the lighting conditions;
(3) providing the eyewitness with instructions that minimize the likelihood of an inaccurate identification, including that the perpetrator may or may not be in the identification procedure and that the investigation will continue regardless of whether an identification is made;
(4) composing the lineup so that the fillers generally resemble the eyewitness's description of the perpetrator so that the suspect does not unduly stand out from the fillers;
(5) using at least four fillers in a live lineup and at least five fillers in a photo lineup;
(6) ensuring, when practicable, that a photograph of the suspect used in a photo lineup is contemporary and resembles the suspect's appearance at the time of the offense;
(7) presenting separate photo lineups and live lineups when there are multiple eyewitnesses, ensuring that the same suspect is placed in a different position for each identification procedure;
(8) having the administrator seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness's own words, as to the eyewitness's confidence level that the person identified is the person who committed the crime;
(9) minimizing factors at any point in time that influence an eyewitness to identify a suspect or affect the eyewitness's confidence level in identifying a suspect, including verbal or nonverbal statements by or reactions from the administrator;
(10) presenting lineup members one at a time;
(11) adopting relevant practices shown to enhance the reliability of an eyewitness participating in a showup procedure, such as:
(a) identifying the circumstances under which a showup is warranted;
(b) transporting the eyewitness to a neutral, non-law enforcement location where the detained suspect is being held;
(c) removing the suspect from the law enforcement squad car;
(d) removing restraints from the suspect when the suspect is being observed by the eyewitness; and
(e) administering the showup procedure close in time to the commission of the crime;
(12) video recording the entirety of the photo lineup and live lineup and, where practicable, the showup procedure, unless the recording equipment is not reasonably available or the recording equipment fails and obtaining replacement equipment is not feasible; and
(13) preserving photographic documentation of all live lineup and photo lineup members and showup suspects, as well as all descriptions provided by the eyewitness of the perpetrator.
F. All written departmental eyewitness identification policies shall be made available to the public upon request.
History: Laws 2019, ch. 211, § 14.
ANNOTATIONSEffective dates. — Laws 2019, ch. 211, § 17 made Laws 2019, ch. 211, § 12 effective July 1, 2019.
Article II, Sec. 18 provides broader due process protections than the United States constitution in the context of admission of eyewitness identification evidence. — Article II, Section 18 of the New Mexico constitution affords broader due process protection than the United States constitution in the context of admission of eyewitness identification evidence because the federal reliability standard, the Manson rule, is both scientifically and jurisprudentially unsound, and hence flawed under an interstitial review, and therefore does not satisfy due process under the New Mexico constitution. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.
New standard for determining whether eyewitness identification evidence is admissible at trial. — Under New Mexico's new standard for determining whether eyewitness identification evidence is admissible at trial, if a witness makes an identification of a defendant as a result of a police identification procedure that is unnecessarily suggestive and conducive to misidentification, the identification and any subsequent identification by the same witness must be suppressed. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.
Burden of proof for admitting evidence of eyewitness identifications. — Under New Mexico's approach to admitting eyewitness identifications, the initial burden falls on the accused to establish prima facie that some aspect of the identification procedure employed by the police was suggestive in nature. If the accused does not meet that burden, suppression is not required. However, if the accused demonstrates that the identification procedure contained one or more suggestive elements, the burden shifts to the state to prove by clear and convincing evidence either that (1) the procedure employed was not so suggestive as to materially taint the identification made by the eyewitness, which is to say that any departure from proper procedure could not have increased the risk of misidentification, or (2) good reason existed for the police to employ the suggestive procedure in the first instance. If the state fails to carry its responsive burden, the identification evidence and any subsequent in-court identification must be suppressed. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.
New Mexico courts abandon the independent source doctrine in the context of disputed eyewitness identifications. — Pursuant to the independent source doctrine, an in-court identification which is independent of and not tainted by an out-of-court identification is admissible at trial. The independent source doctrine in the context of due process and disputed eyewitness identification evidence lacks legal justification and is contrary to existing science. New Mexico therefore abandons the doctrine in the context of disputed eyewitness identifications. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.
Suppression of eyewitness identification not required where defendant failed to establish prima facie that some aspect of the identification procedure used was suggestive in nature. — Where defendant was charged with two counts of murder in the first-degree, and where, during the investigation, detectives showed an eyewitness five or six photos of different individuals, including a picture of defendant, and where the eyewitness identified defendant in one of the photographs as the person he saw at the scene of the shooting, and where, two days later, detectives assembled a photo array and requested that the eyewitness view the array which was composed of six photographs, some of which were the same photos shown to the eyewitness two days before as well as some photos that were new to him, and where the eyewitness again identified defendant in a photo as the person he saw at the scene of the shooting, the district court did not err in admitting evidence of the eyewitness's identification because defendant failed to establish prima facie that some aspect of the identification procedure used by the detectives was suggestive in nature. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.
