Section 16-1-110 - Regulation of showup identification procedures - definitions(1) As used in this section, unless the context otherwise requires: (a) "P.O.S.T.-certified" means certified by the peace officers standards and training board created in section 24-31-302.(b) "Showup" means an identification procedure in which an eyewitness is presented with a single subject in person for the purpose of determining whether the eyewitness identifies the individual as the suspect.(2)(a) A peace officer may utilize a showup only pursuant to the following conditions:(I)(A) Following the report of a crime, a peace officer, acting on reasonable suspicion, has detained a subject in the crime within minutes of the commission of the crime and near the location of the crime;(B) Given the circumstances, neither a live lineup nor a photo array are available as a means of identification; and(C) The eyewitness reasonably believes he or she can identify the subject.(II) To verify the identity of an intimate relationship, as defined in section 18-6-800.3 (2), in a domestic violence case; or(III) To confirm the identity of a familial subject, including a parent, child, or sibling known to the eyewitness.(3)(a) Beginning January 1, 2022, for showups conducted on or after this date, when a law enforcement agency that employs peace officers required to be P.O.S.T.-certified pursuant to section 16-2.5-102 or a P.O.S.T.-certified peace officer conducts a showup, the peace officer shall comply with the following provisions:(I) A peace officer shall transport the eyewitnesses separately to the location of the person subject to the showup;(II) The showup location must be as well-lit as practicable with an unobstructed view of the person subject to the showup;(III) A peace officer shall avoid external factors that can be suggestive to the eyewitness, such as verbal comments, computer screen data, or any other information concerning the person subject to the showup;(IV) A peace officer shall not require the person subject to the showup to put on described clothing worn by the suspect, speak specific words uttered by the suspect, or perform any specific actions mimicking those of the suspect that occurred during the commission of the reported crime;(V) A peace officer shall not show the person subject to the showup to the eyewitness while the person was in handcuffs or in the back of a patrol vehicle, except in circumstances to prevent an imminent threat of physical harm to a peace officer or another person or the escape of the subject;(VI) When multiple eyewitnesses exist, a peace officer shall permit only one eyewitness at a time to view the person subject to the showup;(VII) When multiple subjects exist, a peace officer shall separate the subjects and conduct separate showups with each subject;(VIII) A peace officer shall separate the eyewitnesses from one another;(IX) When conducting a showup with an eyewitness who has limited English proficiency or who is hearing impaired or deaf, a peace officer, if feasible, shall obtain an interpreter before proceeding with the showup. The lack of an interpreter does not preclude use of evidence derived from the showup procedure if a court finds the identification is sufficiently or nevertheless reliable.(X) A peace officer shall give the admonition required by subsection (3)(d) of this section prior to conducting the showup;(XI)(B) No later than January 1, 2023, using a body-worn camera, a peace officer shall record a video of the entirety of the showup procedure including each subject to preserve a record of the appearance of the subject at the time of the showup and the location and conditions of the showup, the admonition a peace officer is required to provide to an eyewitness as required by subsection (3)(d) of this section, and the eyewitness confidence statement required by subsection (3)(a)(XII) of this section.(XII) If an eyewitness makes an identification during a showup, a peace officer shall ask the eyewitness whether the eyewitness is confident, somewhat confident, or not confident about the identification. If an eyewitness makes an identification, a peace officer, at the time of the identification, shall take a clear statement from the eyewitness and document the statement in the eyewitness's own words. If an eyewitness makes an identification and an arrest occurs, any further acts to obtain an additional identification by subsequent eyewitnesses must be through a live lineup or photo array.(b) The court shall consider any failure by law enforcement to comply with the requirements of this section with respect to any challenge to a showup identification.(c) A P.O.S.T.-certified peace officer shall document the time and location of the showup and read the showup advisement required by subsection (3)(d) of this section to each eyewitness. The officer shall document the procedure in the officer's written statement and, beginning July 1, 2023, record the showup in its entirety with the officer's body-worn camera.(d)(I) When conducting a showup, a P.O.S.T.-certified peace officer shall verbally communicate to the eyewitness the substance of the following statements:(A) You should not assume the person you are about to see has committed a crime;(B) We could be showing you a person for many reasons, including to clear the person from investigation;(C) Eliminating a person from an investigation serves an equally important purpose as identifying a person who might have been involved in the criminal activity;(D) The investigation of this matter will continue whether or not you identify a person;(E) Apart from individual assistance and cooperation with law enforcement, we cannot discuss the investigation with you; and(F) Please do not discuss what you saw, said, or did during this procedure with any other eyewitness.(II) The P.O.S.T.-certified peace officer shall ask the eyewitness if they understand the instructions, if they agree to comply with the instructions, and if they have any questions before the identification procedure begins. The eyewitness must respond affirmatively in order for the showup to proceed.Added by 2021 Ch. 312, § 3, eff. 9/7/2021 and applicable to showups conducted on or after 1/1/2022.L. 2021: Entire section added, (HB 21-1142), ch. 1904, p. 1904, § 3, effective September 7.Subsection (3)(a)(XI)(A) provided for the repeal of subsection (3)(a)(XI)(A), effective January 1, 2023. (See L. 2021, p.1904.)
2021 Ch. 312, was passed without a safety clause. See Colo. Const. art. V, § 1(3). For the legislative declaration in HB 21-1142, see section 1 of chapter 312, Session Laws of Colorado 2021.