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

(1)        Eyewitness. – A person, including a law enforcement officer, whose identification by sight of another person may be relevant in a criminal proceeding.

(2)        Filler. – A person or a photograph of a person who is not suspected of an offense and is included in a lineup.

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

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

(5)        Lineup administrator. – The person who conducts a lineup.

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

(7)        Photo lineup. – A procedure in which an array of photographs is displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.

(8)        Show-up. – A procedure in which an eyewitness is presented with a single live suspect for the purpose of determining whether the eyewitness is able to identify the perpetrator of a crime.

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

(1)        A lineup shall be conducted by an independent administrator or by an alternative method as provided by subsection (c) of this section.

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

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

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

b.         The lineup administrator does not know the suspect’s identity,

c.         The eyewitness should not feel compelled to make an identification,

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

e.         The investigation will continue whether or not an identification is made.

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

(4)        In a photo lineup, the photograph of the suspect shall be contemporary and, to the extent practicable, shall resemble the suspect’s appearance at the time of the offense.

(5)        The lineup shall be composed so that the fillers generally resemble the eyewitness’s description of the perpetrator, while ensuring that the suspect does not unduly stand out from the fillers. In addition:

a.         All fillers selected shall resemble, as much as practicable, the eyewitness’s description of the perpetrator in significant features, including any unique or unusual features.

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

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

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 current suspect participates shall be different from the fillers used in any prior lineups.

(6)        If there are multiple eyewitnesses, the suspect shall be placed in a different position in the lineup or photo array for each eyewitness.

(7)        In a lineup, no writings or information concerning any previous arrest, indictment, or conviction 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 be performed by all lineup participants.

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

(10)      Only one suspect shall be included in a lineup.

(11)      Nothing shall be said to the eyewitness regarding the suspect’s position in the lineup or regarding anything that might influence the eyewitness’s identification.

(12)      The lineup administrator shall 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 in a given lineup is the perpetrator. The lineup administrator shall separate all witnesses in order to discourage witnesses from conferring with one another before or during the procedure. Each witness shall be given instructions regarding the identification procedures without other witnesses present.

(13)      If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning the person before the lineup administrator obtains the eyewitness’s confidence statement about the selection. There shall not be anyone present during the live lineup or photographic identification procedures who knows the suspect’s identity, except the eyewitness and counsel as required by law.

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

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

a.         All identification and nonidentification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness’s confidence statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation.

b.         The names of all persons present at the lineup.

c.         The date, time, and location of the lineup.

d.         The words used by the eyewitness in any identification, including words that describe the eyewitness’s certainty of identification.

e.         Whether it was a photo lineup or live lineup and how many photos or individuals were presented in the lineup.

f.          The sources of all photographs or persons used.

g.         In a photo lineup, the photographs themselves.

h.         In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.

(c)        Alternative Methods for Identification if Independent Administrator Is Not Used. – In lieu of using an independent administrator, a photo lineup eyewitness identification procedure may be conducted using an alternative method specified and approved by the North Carolina Criminal Justice Education and Training Standards Commission. Any alternative method shall be carefully structured to achieve neutral administration and to prevent the administrator from knowing which photograph is being presented to the eyewitness during the identification procedure. Alternative methods may include any of the following:

(1)        Automated computer programs that can automatically administer the photo lineup directly to an eyewitness and prevent the administrator from seeing which photo the witness is viewing until after the procedure is completed.

(2)        A procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the administrator cannot see or track which photograph is being presented to the witness until after the procedure is completed.

(3)        Any other procedures that achieve neutral administration.

(c1)      Show-Up Procedures. – A show-up conducted by State, county, and other local law enforcement officers shall meet all of the following requirements:

(1)        A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness.

(2)        A show-up shall only be performed using a live suspect and shall not be conducted with a photograph.

(3)        Investigators shall photograph a suspect at the time and place of the show-up to preserve a record of the appearance of the suspect at the time of the show-up procedure.

(4)        Notwithstanding N.C. Gen. Stat. § 7B-2103, an investigator shall photograph a juvenile suspect who is 10 years of age or older at the time and place of the show-up as required by this subsection if the juvenile is reported to have committed a nondivertible offense as set forth in N.C. Gen. Stat. § 7B-1701 or common law robbery. Photographs of juveniles shall be retained or disposed of as required by N.C. Gen. Stat. § 7B-2108, except that the law enforcement agency is required to make written certification to the court of the destruction of records under N.C. Gen. Stat. § 7B-2108(6) only if a petition was filed. Photographs taken pursuant to this subdivision are not public records under Chapter 132 of the N.C. Gen. Stat. and the photographs shall be (i) kept separate from the records of adults, (ii) withheld from public inspection, and (iii) examined only by order of the court, except that the following persons may examine it without an order of the court:

a.         The juvenile or the juvenile’s attorney.

b.         The juvenile’s parent or guardian.

c.         The prosecutor.

d.         Court counselors.

(c2)      (See Editor’s note) The North Carolina Criminal Justice Education and Training Standards Commission shall develop a policy regarding standard procedures for the conduct of show-ups in accordance with this section. The policy shall apply to all law enforcement agencies and shall address all of the following, in addition to the provisions of this section:

(1)        Standard instructions for eyewitnesses.

(2)        Confidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.

(3)        Training of law enforcement officers specific to conducting show-ups.

(4)        Any other matters deemed appropriate by the Commission.

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

(1)        Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress eyewitness identification.

(2)        Failure to comply with any of the requirements of this section shall be admissible in support of claims of eyewitness misidentification, as long as such evidence is otherwise admissible.

(3)        When evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications.

(e)        Nothing in this section shall be construed to require a law enforcement officer while acting in his or her official capacity to be required to participate in a show-up as an eyewitness. ?(2007-421, s. 1; 2015-212, s. 1; 2019-47, s. 2.)