Amended in Senate August 13, 2013

Amended in Assembly April 29, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 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.

LEGISLATIVE COUNSEL’S DIGEST

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, begin insert and where the local law enforcement agency in that jurisdiction has adopted recommended live and photo eyewitness identification procedures, end insert to give specified instructions to the jury, including an instruction 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. begin insert The bill would authorize the court to provide the same instructions in a jurisdiction that has not adopted the recommended live and photo eyewitness identification procedures. end insert

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

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

SECTION 1.  

The Legislature finds and declares the following:

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

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

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

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

SEC. 2.  

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

806.  

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

SEC. 3.  

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

686.3.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(11) Have all witnesses separated when viewing an identification
procedure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 4.  

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

1127i.  

begin insert (a) end insert begin insert   end insert In any criminal trial or proceeding in which a
witness testifies to an identification made before trial, either by
viewing photographs or begin delete in person end delete begin insert in end insert begin insert -person end insert lineups, begin insert and where
the local law enforcement agency in that jurisdiction has adopted
the recommended live and photo eyewitness identification
procedures listed in Section 686.3, end insert the court shall instruct the jury
as begin delete follows: end delete begin insert follows or admonish the jury with a subst end insert begin insert antially similar
instruction: end insert

begin delete

(a)

end delete

begin insert (1) end insert  The procedures listed in Section begin delete 683.3 of the Penal Code end delete
begin insert 686.3 end insert are designed to decrease the likelihood of misidentification
when the police conduct an identification procedure, such as a
lineup. As jurors, you may consider evidence that police officers
did or did not follow those procedures when you decide whether
a witness in this case was correct or mistaken in identifying the
defendant as the perpetrator of the crime.

begin delete

(b)

end delete

begin insert (2) end insert  Use of these procedures alone does not mean that the witness
is correct or is credible, but only that police followed procedures
that are designed to decrease the likelihood that the witness will
make a mistake during the lineup or other identification procedure.

begin delete

(c)

end delete

begin insert (3) end insert  If police officers did not follow the procedures recommended
in Section begin delete 683.3 of the Penal Code, end delete begin insert 686.3, end insert consider the eyewitness
identification with caution and close scrutiny. This does not mean
that you may arbitrarily disregard his or her testimony, but you
should give it the weight you think it deserves in the light of all
the evidence in the case.

begin insert

(b) In any criminal proceeding or trial in which a witness
testifies to an identification made before trial in a jurisdiction that
has not adopted the recommended live and photo eyewitness
identification procedures listed in Section 686.3, the court may,
but is not required to, provide the jury with the instruction in
subdivision (a) or admonish the jury with a substantially similar
instruction.

end insert begin insert

(c) In addition to the jury instruction required under subdivision
(a) and authorized under subdivision (b), the court may, but is not
required to, provide the jury with any additional instructions the
court may deem necessary.

end insert