Rules of evidence; identification by means of previous recognition, in absence of present identification

§ 60.25 Rules of evidence; identification by means of previous

recognition, in absence of present identification.

1. In any criminal proceeding in which the defendant's commission of
an offense is in issue, testimony as provided in subdivision two may be
given by a witness when:

(a) Such witness testifies that:

(i) He or she observed the person claimed by the people to be the
defendant either at the time and place of the commission of the offense
or upon some other occasion relevant to the case; and

(ii) On a subsequent occasion he or she observed, under circumstances
consistent with such rights as an accused person may derive under the
constitution of this state or of the United States, a person or, where
the observation is made pursuant to a blind or blinded procedure as
defined in paragraph (c) of this subdivision, a pictorial, photographic,
electronic, filmed or video recorded reproduction of a person whom he or
she recognized as the same person whom he or she had observed on the
first or incriminating occasion; and

(iii) He or she is unable at the proceeding to state, on the basis of
present recollection, whether or not the defendant is the person in
question; and

(b) It is established that the defendant is in fact the person whom
the witness observed and recognized or whose pictorial, photographic,
electronic, filmed or video recorded reproduction the witness observed
and recognized on the second occasion. Such fact may be established by
testimony of another person or persons to whom the witness promptly
declared his or her recognition on such occasion and by such pictorial,
photographic, electronic, filmed or video recorded reproduction.

(c) For purposes of this section, a "blind or blinded procedure" is
one in which the witness identifies a person in an array of pictorial,
photographic, electronic, filmed or video recorded reproductions under
circumstances where, at the time the identification is made, the public
servant administering such procedure: (i) does not know which person in
the array is the suspect, or (ii) does not know where the suspect is in
the array viewed by the witness. The failure of a public servant to
follow such a procedure shall be assessed solely for purposes of this
article and shall result in the preclusion of testimony regarding the
identification procedure as evidence in chief, but shall not constitute
a legal basis to suppress evidence made pursuant to subdivision six of
section 710.20 of this chapter. This article neither limits nor expands
subdivision six of section 710.20 of this chapter.

2. Under circumstances prescribed in subdivision one of this section,
such witness may testify at the criminal proceeding that the person whom
he or she observed and recognized or whose pictorial, photographic,
electronic, filmed or video recorded reproduction he or she observed and
recognized on the second occasion is the same person whom he or she
observed on the first or incriminating occasion. Such testimony,
together with the evidence that the defendant is in fact the person whom
the witness observed and recognized or whose pictorial, photographic,
electronic, filmed or video recorded reproduction he or she observed and
recognized on the second occasion, constitutes evidence in chief.