California Legislature—2013–14 Regular Session

Assembly BillNo. 604

Introduced by Assembly Member Ammiano

February 20, 2013

An act to add Section 806 to the Evidence Code, and to add Sections 686.3 and 1127i to the Penal Code, relating to criminal investigations.


AB 604, as introduced, Ammiano. Criminal investigations: eyewitness identification.

Existing law allows opinion testimony from expert witnesses to be admitted at trial upon specified showings.

This bill would allow expert testimony regarding the reliability of an eyewitness identification to be admitted at trial if the proponent of the evidence establishes relevancy and proper qualifications of the witness.

Existing law generally regulates the collection and admissibility of evidence for purposes of criminal prosecutions.

This bill would authorize any law enforcement agency to adopt regulations for conducting photo and live lineups with eyewitnesses, and provides that specified procedures should be considered when adopting the regulations, including sequentially presenting photos used in an identification procedure and separating all witnesses when viewing an identification procedure.

Existing law provides that in any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court before commencement of argument.

This bill would require the court in a criminal trial or proceeding in which a witness testifies to an identification made before trial, as specified, to instruct the jury that they may consider evidence that law enforcement officers did or did not follow specified procedures during identification procedures when determining the reliability of the eyewitness identification.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1


The Legislature finds and declares the following:

2(a) The goal of a law enforcement criminal investigation is to
3find and apprehend the person or persons responsible for
4committing a crime.

5(b) Eyewitness identification procedure studies indicate that the
6criminal justice system can significantly decrease the rate of
7erroneous eyewitness identifications by implementing changes to
8identification procedures.

9(c) A decrease in the number of erroneous eyewitness
10identifications will increase public trust in the criminal justice
11system, which, in turn, will increase the ability of law enforcement
12and prosecutors to convict the guilty and protect our communities.

13(d) New policies and procedures, such as those recommended
14by the National Institute of Justice, are readily available and have
15proven effective in other jurisdictions. States, including New Jersey
16and Oregon, have recognized and adopted the importance of tested
17eyewitness identification procedures that are shown to increase
18reliability. Several local jurisdictions in California have also
19adopted tested eyewitness identification procedures with great
20success and significant cost savings.


SEC. 2.  

Section 806 is added to the Evidence Code, to read:



Expert testimony may be admitted regarding factors that
23affect the reliability of eyewitness identification if the proponent
24of the evidence establishes relevancy and proper qualifications of
25the witness.


SEC. 3.  

Section 686.3 is added to the Penal Code, to read:



(a) Any local law enforcement agency, including, but
28not limited to, police departments, sheriffs, and prosecutors, may
29adopt regulations for conducting photo and live lineups with
30eyewitnesses. In adopting the regulations, those agencies are
31encouraged to consider all of the following procedures:

P3    1(1) Prior to conducting the identification procedure, and as close
2in time to the incident as possible, have the eyewitness complete
3a standardized form describing the perpetrator of the offense.

4(2) If practicable, have the investigator conducting the
5identification procedure be a person who is not aware of which
6person in the identification procedure is suspected as the perpetrator
7of the offense.

8(3) Present photos used in an identification procedure
9sequentially, and not simultaneously.

10(4) Prior to any identification procedure, instruct an eyewitness
11of all the following:

12(A) The perpetrator may not be among the persons in the
13identification procedure.

14(B) The eyewitness should not feel compelled to make an

16(C) An identification or failure to make an identification will
17not end the investigation.

18(5) If the identification procedure is being done sequentially,
19instruct an eyewitness of all of the following prior to the
20identification procedure:

21(A) Each photograph or person shall be viewed one at a time.

22(B) The photographs or persons shall be displayed in random

24(C) The eyewitness should take as much time as needed in
25making a decision about each photograph or person before moving
26to the next one.

27(D) All photographs or persons will be shown to the eyewitness,
28even if an identification is made before all photographs or persons
29have been viewed.

30(6) Compose an identification procedure so that the fillers
31generally fit the description of the person suspected as the
32perpetrator, and in the case of a photo lineup, the photograph of
33the person suspected as the perpetrator resemble his or her
34appearance at the time of the offense and does not unduly stand

36(7) If the eyewitness has previously viewed an identification
37procedure in connection with the identification of another person
38suspected of involvement in the offense, have the fillers in the
39lineup in which the person suspected as the perpetrator participates
40be different from the fillers used in any prior lineups.

P4    1(8) In a live lineup, have any identification actions, such as
2speaking or making gestures or other movements, be performed
3by all lineup participants.

4(9) All live lineup participants shall be out of the view of the
5eyewitness prior to the beginning of the identification procedure.

6(10) Have only one suspected perpetrator included in any
7identification procedure.

8(11) Have all witnesses separated when viewing an identification

10(12) If the eyewitness identifies a person he or she believes to
11be the perpetrator, then have all of the following apply:

12(A) The investigator shall immediately inquire as to the
13eyewitness’s confidence level in the accuracy of the identification.

14(B) No information concerning the identified person shall be
15given to the eyewitness prior to obtaining the eyewitness’s
16statement of confidence level.

17(13) Have a written record of the identification procedure be
18made that includes, at a minimum, all of the following:

19(A) All identification and nonidentification results obtained
20during the identification procedure and signed by the eyewitness.

21(B) A statement of the eyewitness’ own words regarding how
22certain he or she is regarding the accuracy of his or her
23identification and signed by him or her.

24(C) The names of all persons present at the identification

26(D) The date, time, and location of the identification procedure.

27(E) If the identification procedure was conducted sequentially,
28the order in which the photographs or persons were displayed to
29the eyewitness.

30(F) Color copies of all photographs used in a photo lineup.

31(G) Identification information and the sources of all photographs
32used in a photo lineup.

33(H) Identification information for all individuals used in a live
34lineup and a video recording of the lineup.

35(b) For purposes of this section, the following terms have the
36following meanings:

37(1) “Eyewitness” means a person whose identification of another
38person may be relevant in a criminal investigation.

P5    1(2) “Filler” means either a person or a photograph of a person
2who is not suspected of an offense and is included in an
3identification procedure.

4(3) “Identification procedure” means either a photo lineup or a
5live lineup.

6(4) “Investigator” means the person conducting the live or photo

8(5) “Live lineup” means a procedure in which a group of
9persons, including the person suspected as the perpetrator of an
10offense and other persons not suspected of the offense, is displayed
11to an eyewitness for the purpose of determining whether the
12eyewitness is able to identify the suspect as the perpetrator.

13(6) “Photo lineup” means a procedure in which an array of
14photographs, including a photograph of the person suspected as
15the perpetrator of an offense and additional photographs of other
16persons not suspected of the offense, is displayed to an eyewitness
17for the purpose of determining whether the eyewitness is able to
18identify the suspect as the perpetrator.


SEC. 4.  

Section 1127i is added to the Penal Code, to read:



In any criminal trial or proceeding in which a witness
21testifies to an identification made before trial, either by viewing
22photographs or in person lineups, the court shall instruct the jury
23as follows:

24(a) The procedures listed in Section 683.3 of the Penal Code
25increase the reliability of eyewitness identifications. As jurors,
26you may consider evidence that police officers did or did not follow
27those procedures when you decide whether a witness in this case
28was correct or mistaken in identifying the defendant as the
29perpetrator of the crime.

30(b) If police officers did not follow the procedures recommended
31in Section 683.3 of the Penal Code, you may view the eyewitness
32identification with caution and close scrutiny. This does not mean
33that you may arbitrarily disregard his or her testimony, but you
34should give it the weight you think it deserves in the light of all
35the evidence in the case.