BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
3
0
8
AB 308 (Ammiano)
As Amended May 27, 2011
Hearing date: July 5, 2011
Evidence Code; Penal Code
MK:mc
CRIMINAL INVESTIGATION:
EYEWITNESS IDENTIFICATION: LINEUPS
HISTORY
Source: California Public Defenders Association; California
Attorneys for Criminal Justice; American Civil Liberties
Union
Prior Legislation: SB 1591 (Ridley-Thomas) - held Senate
Appropriations 2008
SB 756 (Ridley-Thomas) - vetoed 2007
SB 1544 (Migden) - vetoed 2006
Support: Conference of California Bar Associations; Drug Policy
Alliance; California Association of Licensed Investigators;
Friends Committee on Legislation of California; Northern
California Innocence Project; Legal Services for Prisoners
with Children
Opposition:California District Attorneys Association; California
Narcotics Officers Association; California Police Chiefs
Association; California State Sheriffs' Association; Los
Angeles County District Attorney
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Assembly Floor Vote: Ayes 66 - Noes 8
KEY ISSUE
SHOUD THE DEPARTMENT OF JUSTICE IN CONSULTATION WITH SPECIFIED
ENTITIES DEVELOP GUIDELINES FOR POLICIES AND PROCEDURES WITH RESPECT
TO COLLECTION AND HANDLING OF EYEWITNESS EVIDENCE IN CRIMINAL
INVESTIGATIONS BY ALL LAW ENFORCEMENT AGENCIES OPERATING IN
CALIFORNIA?
PURPOSE
The purpose of this bill is to have the Department of Justice in
consultation with specified others develop guidelines for
policies and procedures with respect to the collection and
handling of eyewitness evidence in criminal investigations by all
law enforcement agencies in California.
Existing law sets forth various aspects of criminal procedure.
This bill provides that on or before January 1, 2013, the
Department of Justice, in consultation with the Commission on
Peace Officer Standards and Training, local law enforcement
agencies, prosecutors, defense attorneys, and other legal
experts, including representatives of the California District
Attorneys Association, the Los Angeles District Attorney, the
California Public Defenders Association, and the California
Attorneys for Criminal Justice, shall develop guidelines for
policies and procedures with respect to collection and handling
of eyewitness evidence in criminal investigations by all law
enforcement agencies operating in California. These guidelines
shall be developed to ensure reliable and accurate suspect
identifications and shall be consistent with the reliable
evidence supporting best practices, including the recommendations
of the California Commission on the Fair Administration of
Justice.
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This bill provides that the Department of Justice shall report to
the Legislature on or before July 1, 2013, the guidelines
developed along with recommendations of any legislation needed to
implement the guidelines.
This bill provides that in a criminal action, or in a juvenile
court proceeding if the subject of the proceeding is or may be
adjudged a ward of the juvenile court, expert testimony may be
admitted regarding factors that affect the reliability of
eyewitness identification, if the proponent of the evidence
establishes relevancy and proper qualifications of the witness.
This bill makes the following findings and declarations:
The goal of a law enforcement criminal investigation is
to find and apprehend the person or persons responsible for
committing a crime.
A comprehensive body of peer-reviewed studies of
eyewitness identification procedures indicates that the
criminal justice system can improve the accuracy of
eyewitness identifications by implementing changes to
identification procedures.
Improving the accuracy of eyewitness identifications will
increase public trust in the criminal justice system.
Policies and procedures such as those recommended by the
National Institute of Justice and the California Commission
on the Fair Administration of Justice are readily available
and have proven effective in other jurisdictions.
It is the intent of the Legislature that law enforcement
officials study and consider adopting the policies and
procedures recommended by the California Commission on the
Fair Administration of Justice in order to ensure that
eyewitness identification procedures in California minimize
the chance of misidentification of a suspect.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have continued
to be assailed, and the scrutiny of the federal courts over
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California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take control
of the delivery of medical services to all California state
prisoners confined by the California Department of Corrections
and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in
two federal lawsuits against CDCR sought a court-ordered limit on
the prison population pursuant to the federal Prison Litigation
Reform Act. On January 12, 2010, a three-judge federal panel
issued an order requiring California to reduce its inmate
population to 137.5 percent of design capacity -- a reduction at
that time of roughly 40,000 inmates -- within two years. The
court stayed implementation of its ruling pending the state's
appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject to
the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
According to the California Commission on the Fair
Administration of Justice,
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one the most frequently identified causes of wrongful
conviction is the misidentification of the criminal
perpetrator by eyewitnesses. Three injustices result
from such misidentifications. First, misidentification
can cause an innocent person to be incarcerated.
Second, when an innocent person is incarcerated,
criminal investigations end and the real perpetrator
remains free to commit similar, or potentially worse,
crimes. Third, victims' families are subjected to
double the trauma, with the loss or injury of a loved
one, and the guilt over conviction of an innocent.
In a comprehensive review of all exonerations in the
United States from 1989 through 2003, researchers at
the University of Michigan identified 340 cases, where
there was an official act declaring a defendant not
guilty of a crime for which they had previously been
convicted, such as a pardon based upon evidence of
innocence, or a dismissal after new evidence of
innocence emerged, such as DNA testing. Twenty seven
of these cases were from California.
Of the 340 cases, 60% percent had been convicted of
murder and 36% had been convicted of rape or sexual
assault. Mistaken eyewitness identification was
involved in 88% of the rape and sexual assault cases,
which were resolved after new evidence such as DNA
testing emerged. This suggests that unexposed mistaken
eyewitness identification could be present in other
convictions that heavily rely upon eyewitness
identifications, such as robbery cases where DNA
evidence is not normally present.
Assembly Bill 308 seeks to reduce the likelihood of
wrongful conviction by improving the accuracy of
eyewitness identifications, increasing public trust in
the criminal justice system, and implementing policies
and procedures recommended by the California Commission
on the Fair Administration of Justice that have proven
to be effective in other jurisdictions.
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This bill will establish a process whereby the
Department of Justice, in consultation with the
Commission on Peace Officer Standards and Training
(POST), local law enforcement agencies, prosecutors,
defense attorneys, and other legal experts, including
representatives of the California District Attorneys'
Association, the California Public Defenders'
Association, and the California Attorneys for Criminal
Justice, shall develop guidelines for policies and
procedures with respect to the collection and handling
of eyewitness evidence in criminal investigations by
law enforcement agencies operating in California.
These guidelines shall be developed to ensure reliable
and accurate suspect identifications and shall be
consistent with the reliable evidence supporting best
practices, including the recommendations of the
California Commission on the Fair Administration of
Justice.
The guidelines shall be developed by January 1, 2013.
The Department of Justice shall report to the
Legislature before July 1, 2013, on the guidelines
adopted and any legislation required to implement the
guidelines.
The California Commission on the Fair Administration of
Justice was created (SR 44, 2003) "to study and review
the administration of criminal justice in California,
to determine the extent to which that process has
failed in the past," and to examine safeguards and
improvements, and recommend proposals to ensure that
the administration of justice in California is just,
fair, and accurate. The Commission addressed the issue
of eyewitness identification in its first report and
recommendations on April 13, 2006. The report
summarizes current research in the area of mistaken
eyewitness identification and makes recommendations for
improving the criminal justice system.
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Following the Commission guidelines, Santa Clara County
District Attorney's Office and some local law
enforcement agencies have adopted policies consistent
to those recommended by the Commission, including a
lineup protocol requiring double-blind and sequential
identification procedures, and have agreed to the
protocol without dissent. It has been successfully
implemented for over four years without complaint.
2. Recommendations of the Commission on the Fair Administration of
Justice
The Commission on the Fair Administration of Justice was created
by SR 44 (Burton) in 2004. Chaired by former Attorney General
John Van de Kamp, it was a bi-partisan Commission; its members
were appointed by the Senate.
The Commission was formed to study and review the administration
of criminal justice in California, determine the extent to which
that process has failed in the past, to examine ways of providing
safeguards and making improvements in the way the criminal
justice system functions and to make recommendations and
proposals designed to further ensure that the application and
administration of criminal justice in California is just, fair
and accurate.
The first Report and Recommendations of the Commission, released
on April 13, 2006, was on the subject of eyewitness
identification procedures. In order to reach their
recommendations, the Commission looked at reports from other
commissions; available research; guidelines adopted by the U.S.
Department of Justice, other states and Santa Clara County,
California; and took testimony at a public hearing on March 15,
2006. Ten of the twelve recommendations were adopted unanimously
with dissent by three members to the two remaining
recommendations. The Commission's recommendations are as
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follows:<1>
Double-blind identification procedures should be
utilized whenever practicable, so the person displaying
photos in a photo spread or operating a lineup is not
aware of the identity of the actual suspect. When
double-blind administration is not practicable, other
double-blind alternatives should be considered.
When double-blind procedures are utilized, the use
of sequential presentation of photos and lineup
participants is preferred, so the witness is only
presented with one person at a time. Photos or
subjects should be presented in random order, and
witnesses should be instructed to say yes, no, or
unsure as to each photo or participant. Sequential
procedures should not be used where double-blind
administration is not available. (Members Lockyer, Fox
and Totten dissented to this recommendation, see
below.)
A single subject show-up should not be used if there
is probable cause to arrest the suspect. The
suggestiveness of show-ups should be minimized by
documenting a description of the perpetrator prior to
the show-up, transporting the witness to the location
of the suspect, and where there are multiple witnesses
they should be separated, and lineups or photo spreads
should be used for remaining witnesses after an
identification is obtained from one witness.
All witnesses should be instructed that a suspect
may or may not be in a photo spread, lineup or show-up,
and they should be assured that an identification or
failure to make an identification will not end the
investigation.
-------------------------
<1> For a complete copy of the Commission's report, the dissent,
and the response to the dissent, please see the Commission's Web
site: http://www.ccfaj.org/index.html.
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Live lineup procedures and photo displays should be
preserved on videotape, or audiotape when video is not
practicable. When videotaping is not practicable, a
still photo should be taken of a live lineup. Police
acquisition of necessary video equipment should be
supported by legislative appropriations.
At the conclusion of a lineup, photo presentation,
or show-up, a witness who has made identification
should describe his or her level of certainty, and that
statement should be recorded or otherwise documented,
and preserved. Witnesses should not be given feedback
confirming the accuracy of their identification until a
statement describing level of certainty has been
documented.
A minimum of six photos should be presented in a
photo spread, and a minimum of six persons should be
presented in a lineup. The fillers or foils in photo
spreads and lineups should resemble the description of
the suspect given at the time of the initial interview
of the witness unless this method would result in an
unreliable or suggestive presentation.
Photo spreads and lineups should be presented to
only one witness at a time, or where separate
presentation is not practicable, witnesses should be
separated so they are not aware of the responses of
other witnesses.
Training programs should be provided and required to
train police in the use of recommended procedures for
photo spreads, show-ups and lineups. The Legislature
should provide adequate funding for any training
necessitated by the recommendations of this Commission.
Training programs should be provided and required
for judges, prosecutors and defense lawyers, to
acquaint them with the particular risks of cross-racial
identifications, as well as unreliable identification
procedures, and the use of expert testimony to explain
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these risks to juries. The Legislature should provide
adequate funding for any training necessitated by the
recommendations of this Commission.
The standardized jury instructions utilized in
eyewitness identification cases to acquaint juries with
factors that may contribute to unreliable
identifications should be evaluated in light of current
scientific research regarding cross-racial
identifications and the relevance of the degree of
certainty expressed by witnesses in court. (Members
Lockyer, Fox and Totten dissented to this
recommendation, see below.)
The Commission recognizes that criminal justice
procedures, including eyewitness identification
protocols, greatly benefit from ongoing research and
evaluation. Thus, the Commission recommends the
continued study of the causes of mistaken eyewitness
identification and the consideration of new or modified
protocols.
Then Attorney General Lockyer and District Attorneys Fox and
Totten did not agree that sequential lineups should be designated
as the preferred method and filed a dissent to that
recommendation. They believed that a recent Illinois study calls
into question the accuracy of these types of lineups. In
response to the dissent, the Chair noted that the debate over
simultaneous vs. sequential lineups is not over. The Illinois
study was considered by the Commission but instead of relying on
one study, they relied on other studies and recommendations
adopted in other jurisdictions that were consistent. The Chair
noted that the recommendation "is simply at the present time,
based upon our analysis of the available research, sequential
identification procedures are preferred."
Then Attorney General Lockyer and District Attorneys Fox and
Totten also did not agree with the recommendation that the jury
instruction be evaluated in light of current scientific evidence.
They noted that they "do not believe that this Commission should
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be interjecting itself into the development of jury instructions"
which has been delegated to the Judicial Council by the Chief
Justice. In response, Chair Van de Kamp notes that the Advisory
Committee invites suggestions and the Judicial Council regularly
seeks comment.
3. The Illinois and Other Studies
At the time of the Commission's hearing on eyewitness
identification, the Illinois study that the dissenters to the
Commission's recommendations relied in part for their dissent had
only been recently released and had not been peer reviewed.
Since that time it has been found that the study was
scientifically flawed, for example:
Gary Wells, one of the leading authorities on
eyewitness identification, and other noted social
scientists note that the experiment was not conducted
according to fundamental scientific principles, and
therefore fails to provide any scientific validity or
reliability. Specifically, the "experiment" compared
the sequential procedure using double-blind
administration to the simultaneous procedure absent
double-blind administration. This lack of controls in
the study's design is a fatal scientific flaw, and
"precludes any meaningful conclusions about the
results."<2>
Furthermore, according to the Northern California Innocence
Project "nearly the entire body of existing research consistently
supports the effectiveness of the doubleblind sequential
----------------------------
<2> Gary Wells' website:
http://www.psychology.iastate.edu/FACULTY/gwells/Illinois_Pilot_Pr
ogram_on_Sequential_Double-
Blind_Identification_Procedures_reactions.pdf
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procedure in decreasing false identifications.<3>
The Northern California Innocent Project also points to the
recent analysis of a pilot program in Hennepin County, Minnesota,
which includes Minneapolis and several dozen suburban
communities, that also tested the effectiveness of a
double-blindsequential lineup concluded, "the Hennepin County
pilot project substantially decreased the rate of false
identification, yet maintained an effective rate of suspect
identification." <4>
4. Santa Clara and Other Jurisdictions
In October 1999, the US Department of Justice released
recommendations for guidelines for identification procedures.
The Attorney General for the State of New Jersey promulgated
guidelines based on the USDOJ guidelines for implementation by
all law enforcement in the state. Other states are also in the
process of developing or adopting similar guidelines. In 2002,
Santa Clara County, California adopted lineup protocol using
double-blind and sequential identification procedures similar to
the ones in this bill. According to testimony at the hearing
held by the
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<3> Notably, a meta-analysis, which collapsed the results of
twenty-three papers that comprised 4,145 participants, showed
that the rejection of the innocent occurred at a significantly
higher rate in a sequential lineup compared to a simultaneous
one. (Steblay, N. Jennifer Dysart, Solomon Fulero, R. C. L.
Lindsay (2001). "Eyewitness Accuracy Rates in Sequential and
Simultaneous Lineup Presentations: A Meta-Analytic Comparison,"
Law and Human Behavior, 25, 459-473). Among other prominent
studies that support the use of the double-blind sequential
procedure include: Lindsay, R. C. L., Lea, J. A., Nosworthy, G.
J., Fulford, J. A., Hector, J., LeVan, V., & Seabrook, C. (1991).
Biased lineups: Sequential presentation reduces the problem.
Journal of Applied Psychology, 76(6),
796-802.G. Wells, G.L., Small, M. & Penrod, S. et al., Eyewitness
Identification Procedures: Recommendations for Lineups and
Photospreads, 22 Law & Hum. Behav. 603, 619-20 (1998).
<4> Klobuchar, A. & Hilary Caliguiri, "Protecting the
Innocent/Convicting the Guilty: Hennepin County's Pilot Project
in Blind Sequential Eyewitness Identification," William Mitchell
Law Review, Vol. 32:1.
Commission on the Fair Administration of Justice, "all law
enforcement agencies within Santa Clara County agreed to the
protocol without dissent, and the protocol has been successfully
implemented for nearly four years without complaint."<5> <6>
5. Procedures for Eyewitness Identification
This bill provides that it is the intent of the Legislature that
law enforcement officials study and consider adoption of new
policies and procedures similar to those recommended by the
National Institute of Justice and the California Commission on
the Fair Administration of Justice to ensure that eyewitness
identification procedures in California minimize the chance of
misidentification of a suspect. Under this bill, on or before
January 1, 2013, the Department of Justice in consultation with
Commission on Peace Officer Standards and Training, local law
enforcement agencies, prosecutors, defense attorneys, and other
legal experts including representatives of the California
District Attorneys Association, the Los Angeles District
Attorney, the California Public Defenders Association and the
California Attorneys for Criminal Justice, shall develop
guidelines for policies and procedures with respect to collection
and handling of eyewitness evidence in criminal investigations by
all law enforcement agencies operating in California. The
guidelines shall be developed to ensure reliable and accurate
suspect identifications and shall be consistent with reliable
evidence supporting best practices, including the recommendations
of the California Commission on the Fair Administration of
Justice. The guidelines shall be transmitted to the Legislature
with recommendations of any legislation needed to enforce the
guidelines.
----------------------------
<5> "California Commission on the Fair Administration of Justice
Report and Recommendations Regarding Eye Witness Identification
Procedures," p. 3.
<6> It is interesting to note that testimony at the March 15,
2006, Commission hearing indicated that in the experience of both
Santa Clara County and the State of New Jersey, there was
essentially no cost involved in the adoption of the protocol.
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SHOULD GUIDELINES FOR EYEWITNESS IDENTIFICATION BE CREATED?
6. Support
The sponsor of this bill, the California Public Defenders
Association, states:
This bill will improve public safety by furthering the
cause of justice by holding actual perpetrators
accountable and reducing the number of wrongfully
convicted persons due to mistaken eyewitness
identification. Further, this bill will result in
exoneration of the innocent in criminal proceedings by
improving the reliability of eyewitness identification
procedures?.
The International Association of Chiefs of Police,
National Law Enforcement Policy Center in its September
2010 revised paper on Eyewitness identification
underscored the role of improper suggestion and thus
the need to reform eyewitness identification
procedures, stating:
Although the evidence provided by eyewitnesses can
be tremendously helpful in the development of
leads, identifying criminals, and exonerating the
innocent-it is subject to error. Civilian
eyewitnesses frequently prove to be unreliable
observers, and erroneous identifications are
sometimes the result. Misidentifications by
eyewitnesses are normally the result of a
combination of factors. For example, human
perception tends to be inaccurate, especially under
stress. The average citizen, untrained in
observation and placed under extreme stress as a
victim of or witness to a crime, may not be able to
describe a perpetrator accurately, sometimes even
after coming face-to face with the individual.
Also, a witness, particularly one who is not really
sure what the perpetrator actually looked like, may
be easily influenced by suggestions conveyed to him
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or her during the identification process.
In United States v. Wade, the Supreme Court of the
United States recognized these facts saying:
The influence of improper suggestions by identifying
witnesses probably accounts for more miscarriages of
justice than any other single factor. Perhaps it is
responsible for more such errors than all other
factors combined.
7. Opposition
The California District Attorneys Association opposes this bill
stating:
While increasing the reliability of eyewitness evidence
is certainly a worthwhile and desirable goal, the
requirement in AB 308 that the guidelines be consistent
with the recommendations made by the CCFAJ simply
places too much emphasis on a protocol relative to
line-ups and photo spreads that has not been
conclusively shown to increase reliability of such
identifications. In fact, a 2006 study conducted in
Illinois found that the protocol for some of the
proposed identification procedures actually led to a
lower rate of suspect identification and a higher rate
of false errors. Three members of the CCFAJ dissented
in the official report on eyewitness identification,
noting the uncertainty of the CCFAJ-recommended
procedures for eyewitness identification.
Additionally, factors to be considered by criminal
juries regarding line-ups are clearly articulated in
CALCRIM 315 by the Judicial Council of California. As
such, we feel this bill is, at best, unnecessary. If
enacted, AB 308 will almost certainly result in the
adoption of practices that have not been proved to
increase suspect identifications and in some
circumstances, have been blamed for increasing the
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number of misidentifications.
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