as amended, Ammiano.
begin deleteCriminal investigations: eyewitness identification. end delete
Existing law allows opinion testimony from expert witnesses to be admitted at trial upon specified showings.end delete
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.end delete
Existing law generally regulates the collection and admissibility of evidence for purposes of criminal prosecutions.end delete
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.end delete
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.end delete
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, and where the local law enforcement agency in that jurisdiction has adopted recommended live and photo eyewitness identification procedures, 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. 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 delete
begin deleteno end delete.
Fiscal committee: begin deleteno end delete.
State-mandated local program: begin deleteno end delete.
The people of the State of California do enact as follows:
(a) In order to ensure that its resources are maximized
10for the protection of the public, the Medical Board of California
11shall prioritize its investigative and prosecutorial resources to
12ensure that physicians and surgeons representing the greatest threat
13of harm are identified and disciplined expeditiously. Cases
14involving any of the following allegations shall be handled on a
15priority basis, as follows, with the highest priority being given to
16cases in the first paragraph:
17(1) Gross negligence, incompetence, or repeated negligent acts
18that involve death or serious bodily injury to one or more patients,
19such that the physician and surgeon represents a danger to the
21(2) Drug or alcohol abuse by a physician and surgeon involving
22death or serious bodily injury to a patient.
23(3) Repeated acts of clearly excessive prescribing, furnishing,
24or administering of controlled substances, or repeated acts of
25prescribing, dispensing, or furnishing of controlled
begin delete substancesend delete
26 without a good faith prior examination of the patient
28and medical reason therefor. However, in no event shall a physician
29and surgeon prescribing, furnishing, or administering controlled
30substances for intractable pain consistent with lawful prescribing,
31including, but not limited to, Sections 725, 2241.5, and 2241.6 of
32this code and Sections 11159.2 and 124961 of the Health and
33Safety Code, be prosecuted for excessive prescribing and prompt
34review of the applicability of these provisions shall be made in
35any complaint that may implicate these provisions.
36(4) Sexual misconduct with one or more patients during a course
37of treatment or an examination.
38(5) Practicing medicine while under the influence of drugs or
P9 1(b) The board may by regulation prioritize cases involving an
2allegation of conduct that is not described in subdivision (a). Those
3cases prioritized by regulation shall not be assigned a priority equal
4to or higher than the priorities established in subdivision (a).
5(c) The Medical Board of California shall indicate in its annual
6report mandated by Section 2312 the number of temporary
7restraining orders, interim suspension orders, and disciplinary
8actions that are taken in each priority category specified in
9subdivisions (a) and (b).
(a) Prescribing, dispensing, or furnishing dangerous
13drugs as defined in Section
begin delete 4022end delete without an appropriate
15prior examination and a medical indication, constitutes
18(b) No licensee shall be found to have committed unprofessional
19conduct within the meaning of this section if, at the time the drugs
20were prescribed, dispensed, or furnished, any of the following
22(1) The licensee was a designated physician and surgeon or
23podiatrist serving in the absence of the patient’s physician and
24surgeon or podiatrist, as the case may be, and if the drugs were
25prescribed, dispensed, or furnished only as necessary to maintain
26the patient until the return of his or her practitioner, but in any case
27no longer than 72 hours.
28(2) The licensee transmitted the order for the drugs to a
29registered nurse or to a licensed vocational nurse in an inpatient
30facility, and if both of the following conditions exist:
31(A) The practitioner had consulted with the registered nurse or
32licensed vocational nurse who had reviewed the patient’s records.
33(B) The practitioner was designated as the practitioner to serve
34in the absence of the patient’s physician and surgeon or podiatrist,
35as the case may be.
36(3) The licensee was a designated practitioner serving in the
37absence of the patient’s physician and surgeon or podiatrist, as the
38case may be, and was in possession of or had utilized the patient’s
39records and ordered the renewal of a medically indicated
P10 1prescription for an amount not exceeding the original prescription
2in strength or amount or for more than one refill.
3(4) The licensee was acting in accordance with Section 120582
4of the Health and Safety Code.
The employing, directly or indirectly, the aiding, or the
8abetting of any unlicensed person or any suspended, revoked, or
9unlicensed practitioner to engage in the practice of
begin delete medicineend delete
10 or any other mode of
14treating the sick or afflicted which requires a license to practice
15constitutes unprofessional conduct.
For purposes of this article, the following definitions
18(a) “Attending physician” means an individual who possesses
19a license in good standing to practice medicine or osteopathy issued
20by the Medical Board of California or the Osteopathic Medical
21Board of California and who has taken responsibility for an aspect
22of the medical care, treatment, diagnosis, counseling, or referral
23of a patient and who has
begin delete conducted a medical examination ofend delete
begin delete patient the
25before recording inend delete
begin delete patient’s medical record the physician’s patient has a
26assessment of whether theend delete
begin delete serious medical condition medical
27and whether theend delete
begin delete use of marijuana is appropriate.end delete
30(b) “Department” means the State Department of
begin delete Health
32(c) “Person with an identification card” means an individual
33who is a qualified patient who has applied for and received a valid
34identification card pursuant to this article.
35(d) “Primary caregiver” means the individual, designated by a
36qualified patient or by a person with an identification card, who
37has consistently assumed responsibility for the housing, health, or
38safety of that patient or person, and may include any of the
P33 1(1) In any case in which a qualified patient or person with an
2identification card receives medical care or supportive services,
3or both, from a clinic licensed pursuant to Chapter 1 (commencing
4with Section 1200) of Division 2, a health care facility licensed
5pursuant to Chapter 2 (commencing with Section 1250) of Division
62, a residential care facility for persons with chronic life-threatening
7illness licensed pursuant to Chapter 3.01 (commencing with Section
81568.01) of Division 2, a residential care facility for the elderly
9licensed pursuant to Chapter 3.2 (commencing with Section 1569)
10of Division 2, a hospice, or a home health agency licensed pursuant
11to Chapter 8 (commencing with Section 1725) of Division 2, the
12owner or operator, or no more than three employees who are
13designated by the owner or operator, of the clinic, facility, hospice,
14or home health agency, if designated as a primary caregiver by
15that qualified patient or person with an identification card.
16(2) An individual who has been designated as a primary
17caregiver by more than one qualified patient or person with an
18identification card, if every qualified patient or person with an
19identification card who has designated that individual as a primary
20caregiver resides in the same city or county as the primary
22(3) An individual who has been designated as a primary
23caregiver by a qualified patient or person with an identification
24card who resides in a city or county other than that of the primary
25caregiver, if the individual has not been designated as a primary
26caregiver by any other qualified patient or person with an
28(e) A primary caregiver shall be at least 18 years of age, unless
29the primary caregiver is the parent of a minor child who is a
30qualified patient or a person with an identification card or the
31primary caregiver is a person otherwise entitled to make medical
32decisions under state law pursuant to Sections 6922, 7002, 7050,
33or 7120 of the Family Code.
34(f) “Qualified patient” means a person who is entitled to the
35protections of Section 11362.5, but who does not have an
36identification card issued pursuant to this article.
37(g) “Identification card” means a document issued by the State
38Department of Health
begin delete Servicesend delete that document identifies a
39person authorized to engage in the medical use of marijuana and
40the person’s designated primary caregiver, if any.
P34 1(h) “Serious medical condition” means all of the following
3(1) Acquired immune deficiency syndrome (AIDS).
8(6) Chronic pain.
11(9) Persistent muscle spasms, including, but not limited to,
12spasms associated with multiple sclerosis.
13(10) Seizures, including, but not limited to, seizures associated
15(11) Severe nausea.
16(12) Any other chronic or persistent medical symptom that
18(A) Substantially limits the ability of the person to conduct one
19or more major life activities as defined in the Americans with
20Disabilities Act of 1990 (Public Law 101-336).
21(B) If not alleviated, may cause serious harm to the patient’s
22safety or physical or mental health.
documentation” means accurate reproductions of
24those portions of a patient’s medical records that have been created
25by the attending physician, that contain the information required
26by paragraph (2) of subdivision (a) of Section 11362.715, and that
27the patient may submit to a county health department or the
28county’s designee as part of an application for an identification
Qualified patients, persons with valid
33identification cards, and the designated primary caregivers of
34qualified patients and persons with identification cards, who
35associate within the State of California in order collectively or
36cooperatively to cultivate marijuana for medical purposes, shall
37not solely on the basis of that fact be subject to state criminal
38sanctions under Section 11357, 11358, 11359, 11360, 11366,
3911366.5, or 11570.
The Legislature finds and declares the following:
34(a) The goal of a law enforcement criminal investigation is to
35find and apprehend the person or persons responsible for
36committing a crime.
37(b) Eyewitness identification procedure studies indicate that the
38criminal justice system can significantly decrease the rate of
39erroneous eyewitness identifications by implementing changes to
P36 1(c) A decrease in the number of erroneous eyewitness
2identifications will increase public trust in the criminal justice
3system, which, in turn, will increase the ability of law enforcement
4and prosecutors to convict the guilty and protect our communities.
5(d) New policies and procedures, such as those recommended
6by the National Institute of Justice, are readily available and have
7proven effective in other jurisdictions. States, including New Jersey
8and Oregon, have recognized and adopted the importance of tested
9eyewitness identification procedures that are shown to increase
10reliability. Several local jurisdictions in California have also
11adopted tested eyewitness identification procedures with great
12success and significant cost savings.
Section 806 is added to the Evidence Code, to read:
Expert testimony may be admitted regarding factors that
15affect the reliability of eyewitness identification, including the
16identification procedure, if the proponent of the evidence
17establishes 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
20not limited to, police departments, sheriffs, and prosecutors, may
21adopt regulations for conducting photo and live lineups with
22eyewitnesses. In adopting the regulations, those agencies are
23encouraged to consider all of the following procedures:
24(1) Prior to conducting the identification procedure, and as close
25in time to the incident as possible, have the eyewitness complete
26a standardized form describing the perpetrator of the offense.
27(2) If practicable, have the investigator conducting the
28identification procedure be a person who is not aware of which
29person in the identification procedure is suspected as the perpetrator
30of the offense.
31(3) Present photos used in an identification procedure
32sequentially, and not simultaneously.
33(4) Prior to any identification procedure, instruct an eyewitness
34of all the following:
35(A) The perpetrator may not be among the persons in the
37(B) The eyewitness should not feel compelled to make an
39(C) An identification or failure to make an identification will
40not end the investigation.
P37 1(5) If the identification
procedure is being done sequentially,
2instruct an eyewitness of all of the following prior to the
4(A) Each photograph or person shall be viewed one at a time.
5(B) The photographs or persons shall be displayed in random
7(C) The eyewitness should take as much time as needed in
8making a decision about each photograph or person before moving
9to the next one.
10(D) All photographs or persons will be shown to the eyewitness,
11even if an identification is made before all photographs or persons
12have been viewed.
13(6) Compose an identification procedure so that the fillers
14generally fit the description of the person suspected as the
15perpetrator, and in the case of a photo lineup, the photograph of
16the person suspected as the perpetrator resemble his or her
17appearance at the time of the offense and does not unduly stand
19(7) If the eyewitness has previously viewed an identification
20procedure in connection with the identification of another person
21suspected of involvement in the offense, have the fillers in the
22lineup in which the person suspected as the perpetrator participates
23be different from the fillers used in any prior lineups.
24(8) In a live lineup, have any identification actions, such as
25speaking or making gestures or other movements, be performed
26by all lineup participants.
27(9) All live lineup participants shall be out of the view of the
28eyewitness prior to the beginning of the identification procedure.
29(10) Have only one suspected perpetrator included in any
31(11) Have all witnesses separated when viewing an identification
33(12) If the eyewitness identifies a person he or she believes to
34be the perpetrator, then have all of the following apply:
35(A) The investigator shall immediately inquire as to the
36eyewitness’s confidence level in the accuracy of the identification.
37(B) No information concerning the identified person shall be
38given to the eyewitness prior to obtaining the eyewitness’s
39statement of confidence level.
P38 1(13) Have a written record of the identification procedure be
2made that includes, at a minimum, all of the following:
3(A) All identification and nonidentification results obtained
4during the identification procedure and signed by the eyewitness.
5(B) A statement of the eyewitness’ own words regarding how
6certain he or she is regarding the accuracy of his or her
7identification and signed by him or her.
8(C) The names of all persons present at the identification
10(D) The date, time, and location of the identification procedure.
11(E) If the identification procedure was conducted sequentially,
12the order in which the photographs or persons were displayed to
14(F) Color copies of all photographs used in a photo lineup.
15(G) Identification information and the sources of all photographs
16used in a photo lineup.
17(H) Identification information for all individuals used in a live
18lineup and a video recording of the lineup.
19(b) For purposes of this section, the following terms have the
21(1) “Eyewitness” means a person
whose identification of another
22person may be relevant in a criminal investigation.
23(2) “Filler” means either a person or a photograph of a person
24who is not suspected of an offense and is included in an
26(3) “Identification procedure” means either a photo lineup or a
28(4) “Investigator” means the person conducting the live or photo
30(5) “Live lineup” means a procedure in which a group of
31persons, including the person suspected as the perpetrator of an
32offense and other persons not suspected of the offense, is displayed
33to an eyewitness for the purpose of determining whether the
34eyewitness is able to identify the suspect as the perpetrator.
35(6) “Photo lineup” means a procedure in which an array of
36photographs, including a photograph of the person suspected as
37the perpetrator of an offense and additional photographs of other
38persons not suspected of the offense, is displayed to an eyewitness
39for the purpose of determining whether the eyewitness is able to
40identify the suspect as the perpetrator.
Section 1127i is added to the Penal Code, to read:
(a) In any criminal trial or proceeding in which a
3witness testifies to an identification made before trial, either by
4viewing photographs or in-person lineups, and where the local law
5enforcement agency in that jurisdiction has adopted the
6recommended live and photo eyewitness identification procedures
7listed in Section 686.3, the court shall instruct the jury as follows
8or admonish the jury with a substantially similar instruction:
9(1) The procedures listed in Section 686.3 are designed to
10decrease the likelihood of misidentification when the police
11conduct an identification procedure, such as a lineup. As jurors,
12you may consider evidence that police officers did or did not follow
13those procedures when you decide whether a witness in this case
14was correct or mistaken in identifying the defendant as the
15perpetrator of the crime.
16(2) Use of these procedures alone does not mean that the witness
17is correct or is credible, but only that police followed procedures
18that are designed to decrease the likelihood that the witness will
19make a mistake during the lineup or other identification procedure.
20(3) If police officers did not follow the procedures recommended
21in Section 686.3, consider the eyewitness identification with
22caution and close scrutiny. This does not mean that you may
23arbitrarily disregard his or her testimony, but you should give it
24the weight you think it deserves in the light of all the evidence in
26(b) In any criminal proceeding or trial in which a witness
27testifies to an identification made before trial in a jurisdiction that
28has not adopted the recommended live and photo eyewitness
29identification procedures listed in Section 686.3, the court may,
30but is not required to, provide the jury with the instruction in
31subdivision (a) or admonish the jury with a substantially similar
33(c) In addition to the jury instruction required under subdivision
34(a) and authorized under subdivision (b), the court may, but is not
35required to, provide the jury with any additional instructions the
36court may deem necessary.