MODEL BILLS

Eyewitness Identification Reform Act

Summary: The Eyewitness Identification Reform Act improves the reliability of eyewitness identification by requiring police to adopt a series of lineup reforms.

SECTION 1. SHORT TITLE

This Act shall be called the “Eyewitness Identification Reform Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The [legislature/council/commission] finds that:

1. Many innocent people are accused or convicted of serious crimes because of mistaken eyewitness identification.

2. Mistaken police lineup identifications distract law enforcement agencies from apprehending perpetrators.

3. Reports of the U.S. Department of Justice, the American Bar Association, twenty-five years of peer-reviewed scientific research, and the experiences of practitioners across the country indicate that the accuracy of eyewitness identification can be greatly enhanced by the use of “blind” administrators, instructions to the witness, confidence statements and the proper composition of lineups.

(B) PURPOSE—This law is enacted by the legislature to help convict the guilty and exonerate the innocent in criminal proceedings by improving procedures for eyewitness identification of suspects.

SECTION 3. EYEWITNESS IDENTIFICATION REFORM

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1. “Eyewitness” means a person whose identification of another person may be relevant in a criminal proceeding.

2. “Filler” means a person or a photograph of a person who is not suspected of an offense and is included in a lineup.

3. “Photo lineup” means 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.

4. “Live lineup” means 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.

5. “Lineup” means a photo lineup or live lineup.

6. “Lineup administrator” means the person who conducts a lineup.

(B) EYEWITNESS IDENTIFICATION PROCEDURES—Lineups conducted by state, county and local law enforcement officers shall meet the following requirements:

1. The lineup administrator shall be a person who does not know which person in the lineup is the suspect.

2. Before a lineup, the eyewitness shall be instructed that the perpetrator might or might not be presented in the lineup, that the lineup administrator does not know the suspect’s identity, that the eyewitness should not feel compelled to make an identification, that it is as important to exclude innocent persons as it is to identify the perpetrator; and that the investigation will continue whether or not an identification is made.

3. In a photo lineup, the photograph of the suspected perpetrator shall be contemporary and shall resemble his or her appearance at the time of the offense.

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

a. All fillers selected shall resemble the eyewitness’s description of the perpetrator in significant features (i.e. face, weight, and build), including any unique or unusual features (i.e. scar, tattoo, etc.).

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

c. At least four fillers shall be included in a live lineup, in addition to the suspected perpetrator.

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 suspected perpetrator participates shall be different from the fillers used in any prior lineups.

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

6. In a lineup, no writings or information concerning any previous arrest, indictment or conviction of the suspected perpetrator shall be visible or made known to the eyewitness.

7. In a live lineup, any identifying actions, such as speech, gestures or other movements, shall be performed by all lineup participants.

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

9. The suspected perpetrator shall be the only suspected perpetrator included in the lineup.

10. Nothing shall be said to the eyewitness regarding the suspected perpetrator’s position in the lineup or regarding anything that might influence the eyewitness’s identification.

11. 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 a given lineup is the perpetrator.

12. If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning such person before the lineup administrator obtains the eyewitness’s confidence statement about the selection.

13. Unless it is not practical, a video record of the identification procedure 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. Whether video, audio, or in writing, the record shall include the following information:

a. All identification and non-identification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness’s confidence statement.

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) REMEDIES FOR NONCOMPLIANCE

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

(D) TRAINING OF LAW ENFORCEMENT OFFICERS—The Secretary of [Public Safety] shall create educational materials and conduct training programs to instruct law enforcement officers and recruits how to conduct lineups in compliance with this section.

SECTION 4. EFFECTIVE DATE

This Act shall take effect on July 1, 20XX.