AB 604, as amended, 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, tobegin delete instructend deletebegin insert give specified instructions toend insert the jurybegin insert, including an instructionend insert 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:
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.
Section 806 is added to the Evidence Code, to read:
Expert testimony may be admitted regarding factors that
23affect the reliability of eyewitness identificationbegin insert, including the
24identification procedure,end insert if the proponent of the evidence
25establishes relevancy and proper qualifications of the witness.
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
P3 1eyewitnesses. In adopting the regulations, those agencies are
2encouraged to consider all of the following procedures:
3(1) Prior to conducting the identification procedure, and as close
4in time to the incident as possible, have the eyewitness complete
5a standardized form describing the perpetrator of the offense.
6(2) If practicable, have the investigator conducting the
7identification procedure be a person who is not aware of which
8person
in the identification procedure is suspected as the perpetrator
9of the offense.
10(3) Present photos used in an identification procedure
11sequentially, and not simultaneously.
12(4) Prior to any identification procedure, instruct an eyewitness
13of all the following:
14(A) The perpetrator may not be among the persons in the
15identification procedure.
16(B) The eyewitness should not feel compelled to make an
17identification.
18(C) An identification or failure to make an identification will
19not end the investigation.
20(5) If the identification
procedure is being done sequentially,
21instruct an eyewitness of all of the following prior to the
22identification procedure:
23(A) Each photograph or person shall be viewed one at a time.
24(B) The photographs or persons shall be displayed in random
25order.
26(C) The eyewitness should take as much time as needed in
27making a decision about each photograph or person before moving
28to the next one.
29(D) All photographs or persons will be shown to the eyewitness,
30even if an identification is made before all photographs or persons
31have been viewed.
32(6) Compose an identification procedure so that the fillers
33generally
fit the description of the person suspected as the
34perpetrator, and in the case of a photo lineup, the photograph of
35the person suspected as the perpetrator resemble his or her
36appearance at the time of the offense and does not unduly stand
37out.
38(7) If the eyewitness has previously viewed an identification
39procedure in connection with the identification of another person
40suspected of involvement in the offense, have the fillers in the
P4 1lineup in which the person suspected as the perpetrator participates
2be different from the fillers used in any prior lineups.
3(8) In a live lineup, have any identification actions, such as
4speaking or making gestures or other movements, be performed
5by all lineup participants.
6(9) All live lineup participants shall be out of the view of the
7eyewitness prior to the beginning of the identification procedure.
8(10) Have only one suspected perpetrator included in any
9identification procedure.
10(11) Have all witnesses separated when viewing an identification
11procedure.
12(12) If the eyewitness identifies a person he or she believes to
13be the perpetrator, then have all of the following apply:
14(A) The investigator shall immediately inquire as to the
15eyewitness’s confidence level in the accuracy of the identification.
16(B) No information concerning the identified person shall be
17given
to the eyewitness prior to obtaining the eyewitness’s
18statement of confidence level.
19(13) Have a written record of the identification procedure be
20made that includes, at a minimum, all of the following:
21(A) All identification and nonidentification results obtained
22during the identification procedure and signed by the eyewitness.
23(B) A statement of the eyewitness’ own words regarding how
24certain he or she is regarding the accuracy of his or her
25identification and signed by him or her.
26(C) The names of all persons present at the identification
27procedure.
28(D) The date, time, and location of the identification procedure.
29(E) If the identification procedure was conducted sequentially,
30the order in which the photographs or persons were displayed to
31the eyewitness.
32(F) Color copies of all photographs used in a photo lineup.
33(G) Identification information and the sources of all photographs
34used in a photo lineup.
35(H) Identification information for all individuals used in a live
36lineup and a video recording of the lineup.
37(b) For purposes of this section, the following terms have the
38following meanings:
39(1) “Eyewitness” means a person
whose identification of another
40person 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
7lineup.
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.
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
25begin delete increase the reliability of eyewitness identifications.end deletebegin insert are designed
26to decrease the likelihood of misidentification when the police
27conduct an identification procedure, such as a lineend insertbegin insertup.end insert
As jurors,
28you may consider evidence that police officers did or did not follow
29those procedures when you decide whether a witness in this case
30was correct or mistaken in identifying the defendant as the
31perpetrator of the crime.
32(b) Use of these procedures alone does not mean that the witness
33is correct or is credible, but only that police followed procedures
34that are designed to decrease the likelihood that the witness will
35make a mistake during the lineup or other identification procedure.
36(b)
end delete
37begin insert(c)end insert If police officers did not follow the procedures recommended
38in Section 683.3 of the Penal Code,begin delete you may viewend deletebegin insert
considerend insert the
39eyewitness identification with caution and close scrutiny. This
40does not mean that you may arbitrarily disregard his or her
P6 1testimony, but you should give it the weight you think it deserves
2in the light of all the evidence in the case.
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