BILL ANALYSIS Ó
AB 604
Page 1
ASSEMBLY THIRD READING
AB 604 (Ammiano)
As Amended April 29, 2013
Majority vote
PUBLIC SAFETY 4-2
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|Ayes:|Ammiano, Jones-Sawyer, | | |
| |Mitchell, Quirk | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Melendez, Waldron | | |
| | | | |
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SUMMARY : Authorizes law enforcement agencies to adopt
regulations for conducting in person and photo lineups; allows
expert testimony at trial regarding the reliability of
eyewitness identification; and requires the court to provide a
jury instruction advising that it may consider whether or not
law enforcement followed specified procedures when determining
the reliability of eyewitness identification. Specifically,
this bill :
1)Makes legislative findings and declarations regarding
eyewitness identification procedures and mistaken eyewitness
identifications.
2)Allows the admission of expert testimony regarding factors
that affect the reliability of eyewitness identification if
the proponent of the evidence establishes relevancy and proper
qualifications of the witness.
3)Permits local law enforcement agencies to adopt regulations
for conducting photo and live lineups with eyewitnesses and
encourages them to consider the following procedures when
doing so:
a) 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.
b) If practicable, have the investigator conducting the
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identification procedure be a person who is not aware of
which person in the identification procedure is the
suspect.
c) Show photos used in an identification procedure
sequentially, and not simultaneously.
d) Instruct an eyewitness of all the following before the
identification procedure:
i) That the perpetrator may not be among the persons in
the identification procedure;
ii) That the eyewitness should not feel compelled to
make an identification; and,
iii) That an identification or failure to make one will
not end the investigation.
e) If the identification procedure is being done
sequentially, instruct an eyewitness of all of the
following prior to the identification procedure:
i) Each photograph or person shall be viewed one at a
time;
ii) The photographs or persons shall be displayed in
random order;
iii) The eyewitness should take as much time as needed in
making a decision about each photograph or person before
moving to the next one; and,
iv) All photographs or persons will be shown to the
eyewitness, even if an identification is made before all
photographs or persons have been viewed.
f) 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.
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g) 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.
h) In a live lineup, have any identification actions, such
as speaking or making gestures or other movements, be
performed by all lineup participants.
i) All live lineup participants shall be out of the view of
the eyewitness prior to the beginning of the identification
procedure.
j) Have only one suspected perpetrator included in any
identification procedure.
aa) Have all witnesses separated when viewing an
identification procedure.
bb) If the eyewitness identifies a person he or she believes
to be the perpetrator, then have all of the following
apply:
i) The investigator shall immediately inquire as to
the eyewitness's confidence level in the accuracy of
the identification; and,
ii) No information concerning the identified person
shall be given to the eyewitness prior to obtaining the
eyewitness's statement of confidence level.
cc) Have a written record of the identification procedure be
made that includes, at a minimum, all of the following:
i) All identification and non-identification
results obtained during the identification procedure
and signed by the eyewitness;
ii) 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;
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iii) The names of all persons present at the
identification procedure;
iv) The date, time, and location of the
identification procedure;
v) If the identification procedure was conducted
sequentially, the order in which the photographs or
persons were displayed to the eyewitness;
vi) Color copies of all photographs used in a photo
lineup;
vii) Identification information and the sources of
all photographs used in a photo lineup; and,
viii) Identification information for all individuals
used in a live lineup and a video recording of the
lineup.
4)Defines the following terms for purposes of this section:
a) An "eyewitness" is a person whose identification of
another person may be relevant in a criminal investigation.
b) A "filler" is either a person or a photograph of a
person who is not suspected of an offense and is included
in an identification procedure.
c) An "identification procedure" is either a photo lineup
or a live lineup.
d) An "investigator" is the person conducting the live or
photo lineup.
e) A "live lineup" is a procedure in which a group of
persons, including the suspect 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.
f) A "photo lineup" is a procedure in which an array of
photographs, including a photograph of the suspect and
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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.
5)Requires the court in any criminal trial or proceeding in
which a witness testifies to a pre-trial identification,
either in a photo or in-person lineup, to instruct the jury as
follows:
a) The procedures listed in Penal Code Section 683.3 are
designed to decrease the likelihood of misidentification
when police conduct an identification procedure. 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.
b) Use of these procedures alone does not mean that the
witness is correct or credible, only that police followed
procedures that decrease the likelihood that the witness
will make a mistake during the lineup or other
identification procedure.
c) If police officers did not follow the procedures
recommended in Penal Code Section 683.3, you may 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.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author, "The goal of a law
enforcement criminal investigation is to find and apprehend the
person or persons responsible for committing a crime.
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. A decrease in the number of
erroneous eyewitness identifications will increase public trust
in the criminal justice system, which, in turn, will increase
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the ability of law enforcement and prosecutors to convict the
guilty and protect our communities."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
FN: 0000299