BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
6
0
4
AB 604 (Ammiano)
As Amended April 29, 2013
Hearing date: July 2, 2013
Evidence Code; Penal Code
MK:mc
CRIMINAL INVESTIGATIONS:
EYEWITNESS IDENTIFICATION
HISTORY
Source: American Civil Liberties Union; California Public
Defenders Association
Prior Legislation: AB 308 (Ammiano) - held Senate
Appropriations, 2011
SB 1591 (Ridley-Thomas) - held Senate
Appropriations, 2008
SB 756 (Ridley-Thomas) - vetoed, 2007
SB 1544 (Migden) - vetoed, 2006
Support: California Attorneys for Criminal Justice; Conference
of California Bar Associations; Drug Policy Alliance;
Friends Committee on Legislation; Juvenile Innocence
and Fair Sentencing Clinic at the Center for Juvenile
Law
and Policy at Loyola Law School; Legal Services for
Prisoners with Children; Taxpayers for Improving Public
Safety; Former Attorney General
John Van de Kamp; Retired Judge LaDoris Cordell
(More)
AB 604 (Ammiano)
PageB
Opposition:California District Attorneys Association; California
State Sheriffs' Association; Los Angeles County
District Attorney's Office; California Judges
Association
Assembly Floor Vote: Ayes 41 - Noes 34
(NOTE: ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE)
KEY ISSUE
SHOULD THE LAW AUTHORIZE LAW ENFORCEMENT AGENCIES TO ADOPT
REGULATIONS FOR CONDUCTING IN PERSON AND PHOTO LINE-UPS; ALLOW
EXPERT TESTIMONY AT TRIAL REGARDING THE RELIABILITY OF EYEWITNESS
IDENTIFICATION; AND REQUIRE 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 WHEN A JURISDICTION HAS ADOPTED
PROCEDURES?
PURPOSE
The purpose of this bill is to authorize law enforcement
agencies to adopt regulations for conducting in person and photo
line-ups; allow expert testimony at trial regarding the
reliability of eyewitness identification; and require 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 if
a jurisdiction has adopted such regulations.
Existing law provides that no evidence is admissible unless it
is relevant. (Evidence Code
§ 350.)
Existing law provides that all relevant evidence is admissible
unless it is made inadmissible by some constitutional or
(More)
AB 604 (Ammiano)
PageC
statutory provision. (Evidence Code § 351.)
Existing law specifies that relevant evidence shall not be
excluded in any criminal proceeding, unless it is made
inadmissible by a statute passed by a two-thirds vote of each
house of the Legislature after the enactment of Proposition 8.
(Cal. Const., art. I, sec. 28(d).)
Existing law states that in determining the credibility of a
witness, the court or jury may consider any matter that has any
tendency in reason to prove or disprove the truthfulness of his
testimony at the hearing, including but not limited to, the
extent of his or her capacity to perceive, to recollect, or to
communicate any matter about which he testifies. (Evidence Code
§ 780(c).)
Existing law limits the testimony of lay or nonexpert witness
only to facts perceived by use of the witness's own senses.
(Evidence Code § 800(a).)
Existing law provides that a person is qualified to testify as
an expert if he or she has special knowledge, skill, experience,
training, or education sufficient to qualify him or her as an
expert on the subject to which his testimony relates. (Evidence
Code § 720(a).)
Existing law states that if a witness is testifying as an
expert, his or her testimony in the form of an opinion is
limited to such an opinion as is:
Related to a subject sufficiently beyond common
experience that the opinion of an expert would assist the
trier of fact; and,
Based on matter (including his or her special knowledge,
skill, experience, training, and education) perceived by or
(More)
AB 604 (Ammiano)
PageD
personally known to the witness or made known to him or her
at or before the hearing, whether or not admissible, that
is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his
or her testimony relates unless an expert is precluded by
law from using such matter as a basis for his opinion.
(Evidence Code § 801.)
This bill provides that 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 the relevancy and proper
qualifications of the witness.
This bill 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
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
(More)
AB 604 (Ammiano)
PageE
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
resembles his or her appearance at the time of the offense
and does not unduly stand out.
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.
(More)
AB 604 (Ammiano)
PageF
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.
k) Have all witnesses separated when viewing an
identification procedure.
l) 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.
m) 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;
iii) The names of all persons present at the
identification procedure;
iv) The date, time, and location of the identification
(More)
AB 604 (Ammiano)
PageG
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
This bill defines the following terms:
An "eyewitness" is a person whose identification of
another person may be relevant in a criminal investigation.
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.
An "identification procedure" is either a photo lineup
or a live lineup.
An "investigator" is the person conducting the live or
photo lineup.
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.
(More)
AB 604 (Ammiano)
PageH
A "photo lineup" is a procedure in which an array of
photographs, including a photograph of the suspect 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.
This bill provides that in any criminal trial or proceeding in
which a witness testifies to an identification made before
trial, either by viewing photographs or in person lineups and
where a local law enforcement agency has adopted procedures
referenced in 686.3, the court shall instruct the jury as
follows. In any criminal proceeding or trial in which a witness
testifies to identification before trial in a jurisdiction which
as not adopted regulations referenced in 686.3, the court may,
but is not required to instruct the jury as follows:
a) The procedures listed in Section 686.3 of the Penal Code
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.
b) Use of these procedures alone does not mean that the
witness is correct or is credible, but only that police
followed procedures that re designed to 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 Section 686.3 of the Penal Code 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.
This bill makes legislative findings and declarations regarding
(More)
AB 604 (Ammiano)
PageI
eyewitness identification procedures.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
(More)
AB 604 (Ammiano)
PageJ
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The goal of a law enforcement criminal investigation is
(More)
AB 604 (Ammiano)
PageK
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 the ability of law enforcement and
prosecutors to convict the guilty and protect our
communities.
2. Concerns Regarding Eyewitness Misidentification
According to a study published in the Psychology, Public Policy
and Law Journal, "One explanation for the high prevalence of
rape and sexual assault cases among exonerations is recent
improvements in DNA technology that can now be used not only to
identify a perpetrator of rape at trial, but also to clear an
individual of the crime both before and after conviction.
Mistaken eyewitness identification was involved in 88% of the
rape and sexual assault cases. This suggests that unexposed
mistaken identification could be present in other convictions
that heavily rely upon eyewitness identifications, such as
robbery cases where DNA evidence is not normally present. Among
the 80 cases in which rape defendants were subsequently
exonerated and the race of both parties was known, 39 of the
cases involved black men who were wrongfully convicted of raping
white women, and nearly all of these cases involved mistaken
eyewitness identifications. Since less than 10% of all rapes in
the United States involve white victims and black perpetrators,
the fact that a disproportionate number of the rape exonerations
involve white victims misidentifying black suspects suggests
that the risk of error is greater in cross-racial
identifications. Research has consistently confirmed that
cross-racial identifications are not as reliable as within-race
identifications." (Symposium, "The Other Race Effect and
Contemporary Criminal Justice: Eyewitness Identification and
Jury Decision Making" (2001), 7 Psychology, Pub. Policy & Law,
3-262.)
(More)
AB 604 (Ammiano)
PageL
3. Recommendations of the Commission on the Fair Administration
of Justice
The Commission on the Fair Administration of Justice was created
by SR 44 (Burton) in 2004. Chaired by former Attorney General
John Van de Kamp it was a bi-partisan Commission; its members
were appointed by the Senate.
The Commission was formed to study and review the administration
of criminal justice in California, determine the extent to which
that process has failed in the past, to examine ways of
providing safeguards and making improvements in the way the
criminal justice system functions and to make recommendations
and proposals designed to further ensure that the application
and administration of criminal justice in California is just,
fair and accurate.
The first Report and Recommendations of the Commission, released
on April 13, 2006, was on the subject of eyewitness
identification procedures. In order to reach their
recommendations the Commission looked at reports from other
commissions, available research, guidelines adopted by the U.S.
Department of Justice, other states and Santa Clara County,
California and took testimony at a public hearing on March 15,
2006. Ten of the twelve recommendations were adopted
unanimously with dissent by three members to the two remaining
recommendations. The Commission's recommendations are as
follows:<1>
Double-blind identification procedures should be
utilized whenever practicable, so the person
displaying photos in a photo spread or operating a
lineup is not aware of the identity of the actual
suspect. When double-blind administration is not
practicable, other double-blind alternatives should be
considered.
-----------------------
<1> For a complete copy of the Commission's report, the
dissent, and the response to the dissent, please see the
Commission's Web site: http://www.ccfaj.org/index.html
(More)
AB 604 (Ammiano)
PageM
When double-blind procedures are utilized, the use
of sequential presentation of photos and lineup
participants is preferred, so the witness is only
presented with one person at a time. Photos or
subjects should be presented in random order, and
witnesses should be instructed to say yes, no or
unsure as to each photo or participant. Sequential
procedures should not be used where double-blind
administration is not available. (Members Lockyer,
Fox and Totten dissented to this recommendation, see
below.)
A single subject show-up should not be used if
there is probable cause to arrest the suspect. The
suggestiveness of show-ups should be minimized by
documenting a description of the perpetrator prior to
the show-up, transporting the witness to the location
of the suspect, and where there are multiple witnesses
they should be separated, and lineups or photo spreads
should be used for remaining witnesses after an
identification is obtained from one witness.
All witnesses should be instructed that a suspect
may or may not be in a photo spread, lineup or
show-up, and they should be assured that an
identification or failure to make an identification
will not end the investigation.
Live lineup procedures and photo displays should be
preserved on videotape, or audiotape when video is not
practicable. When videotaping is not practicable, a
still photo should be taken of a live lineup. Police
acquisition of necessary video equipment should be
supported by legislative appropriations.
At the conclusion of a lineup, photo presentation,
or show-up, a witness who has made identification
should describe his or her level of certainty, and
that statement should be recorded or otherwise
(More)
AB 604 (Ammiano)
PageN
documented, and preserved. Witnesses should not be
given feedback confirming the accuracy of their
identification until a statement describing level of
certainty has been documented.
A minimum of six photos should be presented in a
photo spread, and a minimum of six persons should be
presented in a lineup. The fillers or foils in photo
spreads and lineups should resemble the description of
the suspect given at the time of the initial interview
of the witness unless this method would result in an
unreliable or suggestive presentation.
Photo spreads and lineups should be presented to
only one witness at a time, or where separate
presentation is not practicable, witnesses should be
separated so they are not aware of the responses of
other witnesses.
Training programs should be provided and required
to train police in the use of recommended procedures
for photo spreads, show-ups and lineups. The
Legislature should provide adequate funding for any
training necessitated by the recommendations of this
Commission.
Training programs should be provided and required
for judges, prosecutors and defense lawyers, to
acquaint them with the particular risks of
cross-racial identifications, as well as unreliable
identification procedures, and the use of expert
testimony to explain these risks to juries. The
Legislature should provide adequate funding for any
training necessitated by the recommendations of this
Commission.
The standardized jury instructions utilized in
eyewitness identification cases to acquaint juries
with factors that may contribute to unreliable
identifications should be evaluated in light of
(More)
AB 604 (Ammiano)
PageO
current scientific research regarding cross-racial
identifications and the relevance of the degree of
certainty expressed by witnesses in court. (Members
Lockyer, Fox and Totten dissented to this
recommendation, see below.)
The Commission recognizes that criminal justice
procedures, including eyewitness identification
protocols, greatly benefit from ongoing research and
evaluation. Thus, the Commission recommends the
continued study of the causes of mistaken eyewitness
identification and the consideration of new or
modified protocols.
Then-Attorney General Lockyer and District Attorneys Fox and
Totten did not agree that sequential lineups should be
designated as the preferred method and filed a dissent to that
recommendation. They believed that a recent Illinois study
calls into question the accuracy of these types of lineups. In
response to the dissent, the Chair noted that the debate over
simultaneous vs. sequential lineups is not over. The Illinois
study was considered by the Commission but instead of relying on
one study they relied on other studies and recommendations
adopted in other jurisdictions that were consistent. The Chair
noted that the recommendation "is simply at the present time,
based upon our analysis of the available research, sequential
identification procedures are preferred."
Then Attorney General Lockyer and District Attorneys Fox and
Totten also did not agree with the recommendation that the jury
instruction be evaluated in light of current scientific
evidence. They noted that they "do not believe that this
Commission should be interjecting itself into the development of
jury instructions" which has been delegated to the Judicial
Council by the Chief Justice. In response, Chair Van de Kamp
notes that the Advisory Committee invites suggestions and the
Judicial Council regularly seeks comment.
4. The Illinois and Other Studies
(More)
AB 604 (Ammiano)
PageP
At the time of the Commission's hearing on eyewitness
identification, the Illinois study that the dissenters to the
Commission's recommendations relied in part for their dissent
had only been recently released and had not been peer reviewed.
Since that time it has been found that the study was
scientifically flawed, for example:
Gary Wells, one of the leading authorities on
eyewitness identification, and other noted social
scientists note that the experiment was not conducted
according to fundamental scientific principles, and
therefore fails to provide any scientific validity or
reliability. Specifically, the "experiment" compared
the sequential procedure using double-blind
administration to the simultaneous procedure absent
double-blind administration. This lack of controls in
the study's design is a fatal scientific flaw, and
"precludes any meaningful conclusions about the
results."<2>
Furthermore, according to the Northern California Innocence
Project "nearly the entire body of existing research
consistently supports the effectiveness of the doubleblind
---------------------------
<2> Gary Wells' website:
http://www.psychology.iastate.edu/FACULTY/gwells/Illinois_Pilot_P
rogram_on_Sequential_Double-
Blind_Identification_Procedures_reactions.pdf
(More)
AB 604 (Ammiano)
PageQ
sequential procedure in decreasing false identifications. <3>
In comments on previous bills on this issue, the Northern
California Innocent Project also points to the recent analysis
of a pilot program in Hennepin County, Minnesota, which includes
Minneapolis and several dozen suburban communities, that also
tested the effectiveness of a double-blind sequential lineup
concluded, "the Hennepin County pilot project substantially
decreased the rate of false identification, yet maintained an
effective rate of suspect identification." <4>
5. Santa Clara and Other Jurisdictions
In October 1999 the US Department of Justice released
recommendations for guidelines for identification procedures.
The Attorney General for the State of New Jersey promulgated
guidelines based on the USDOJ guidelines for implementation by
all law enforcement in the state. Other states are also in the
process of developing or adopting similar guidelines. In 2002,
Santa Clara County, California adopted lineup protocol using
double-blind and sequential identification procedures similar to
the ones in this bill. According to testimony at the hearing
held by the Commission on the Fair Administration of Justice,
"all law enforcement agencies within Santa Clara County agreed
to the protocol without dissent, and the protocol has been
successfully implemented for nearly four years without
---------------------------
<3> Notably, a meta-analysis, which collapsed the results of
twenty-three papers that comprised 4,145 participants, showed
that the rejection of the innocent occurred at a significantly
higher rate in a sequential lineup compared to a simultaneous
one. (Steblay, N. Jennifer Dysart, Solomon Fulero, R. C. L.
Lindsay. (2001). "Eyewitness Accuracy Rates in Sequential and
Simultaneous Lineup Presentations: A Meta-Analytic Comparison,"
Law and Human Behavior, 25, 459-473). Among other prominent
studies that support the use of the double-blind sequential
procedure include: Lindsay, R. C. L., Lea, J. A., Nosworthy, G.
J., Fulford, J. A., Hector, J., LeVan, V., & Seabrook, C.
(1991). Biased lineups: Sequential presentation reduces the
problem. Journal of Applied Psychology, 76(6),
796-802.G. Wells, G.L., Small, M. & Penrod, S. et al.,
Eyewitness Identification Procedures: Recommendations for
Lineups and Photospreads, 22 Law & Hum. Behav. 603, 619-20
(1998).
<4> Klobuchar, A. & Hilary Caliguiri, "Protecting the
Innocent/Convicting the Guilty: Hennepin County's Pilot Project
in Blind Sequential Eyewitness Identification," William Mitchell
Law Review, Vol. 32:1.
<5> "California Commission on the Fair Administration of
Justice Report and Recommendations Regarding Eye Witness
Identification Procedures," p. 3.
(More)
AB 604 (Ammiano)
PageR
complaint."<5>, <6>
6. Eyewitness Identification Procedures
This bill provides that a local law enforcement agency may adopt
regulations for conducting photo and live lineups and sets forth
procedures they are encouraged to consider when doing so.
According to the ACLU:
AB 604 is important and timely legislation that
authorizes law enforcement agencies to use eyewitness
identification procedures that are scientifically
proved to reduce the risk of mistaken identifications.
These procedures, such as those recommended by the
International Association of Chiefs' of Police and the
American Bar Association, are readily available and
have proven effective in other states along with
several local law enforcement agencies in California.
7. Jury Instruction Provision
---------------------------
<6> It is interesting to note that testimony at the March 15,
2006, Commission hearing indicated that in the experience of
both Santa Clara County and the State of New Jersey, there was
essentially no cost involved in the adoption of the protocol.
(More)
AB 604 (Ammiano)
PageS
This bill requires a specified jury instruction in any criminal
trial or proceeding in which a witness testifies to an
identification made before trial, either by viewing photographs
or in person lineups and where a local law enforcement agency
has adopted procedures and makes it optional in a criminal
proceeding in which a witness testifies to an identification
before trial in a jurisdiction which has not adopted such
proceedings.
There is currently a jury instruction regarding eyewitness
identification which instructs on factors to consider in
evaluating this evidence. It includes a few factors regarding
pretrial identification procedures. CALCRIM No. 315 states:
You have heard eyewitness testimony identifying the
defendant. As with any other witness, you must decide
whether an eyewitness gave truthful and accurate
testimony.
In evaluating identification testimony, consider the
following questions:
Did the witness know or have contact with the defendant
before the event?
How well could the witness see the perpetrator?
What were the circumstances affecting the witness's
ability to observe, such as lighting, weather
conditions, obstructions, distance, [and] duration of
observation[, and _________________ ]?
How closely was the witness paying attention?
Was the witness under stress when he or she made the
observation?
Did the witness give a description and how does that
description compare to the defendant?
(More)
AB 604 (Ammiano)
PageT
How much time passed between the event and the time
when the witness identified the defendant?
Was the witness asked to pick the perpetrator out of a
group?
Did the witness ever fail to identify the defendant?
Did the witness ever change his or her mind about the
identification?
How certain was the witness when he or she made an
identification?
Are the witness and the defendant of different races?
[Was the witness able to identify other participants in
the crime?]
[Was the witness able to identify the defendant in a
photographic or physical lineup?] "[_________________
.]
Were there any other circumstances affecting the
witness's ability to make an accurate identification?
The People have the burden of proving beyond a
reasonable doubt that it was the defendant who
committed the crime. If the People have not met this
burden, you must find the defendant not guilty.
The jury instruction proposed in this bill advises the jury that
certain procedures are designed to decrease the likelihood of
misidentifications; that it may consider whether these
procedures were followed; and that if they were not followed,
the eyewitness identification should be viewed with caution.
In People v. Wright (1988) 45 Cal.3d 1126, the California
(More)
AB 604 (Ammiano)
PageU
Supreme Court considered a proposed defense instruction advising
the jury that eyewitness identification testimony may be
mistaken and "should be viewed with caution." (Id. at p. 1152.)
Specifically, the requested instruction said, "Where the
prosecution has offered identification testimony, that is, the
testimony of an eyewitness that he saw the defendant commit the
act charged, such testimony should be received with caution. An
identification by a stranger is not as trustworthy as an
identification by an acquaintance. Mistaken identification is
not uncommon, and careful scrutiny of such testimony is
especially important." (Ibid.) The Court found that the
instruction was improper in that "it goes beyond previously
approved cautionary instructions by informing the jury not only
that it should view the eyewitness identification evidence with
caution, but also that such evidence is frequently unreliable
and misidentification is 'not uncommon." (Id at p. 1154.) The
instruction required by this bill is distinguishable from the
one rejected in Wright, supra, 45 Cal.3d 1126. This instruction
only advises that if best practices were not used in the
pretrial identification procedures, then the subsequent
identification should be viewed with caution. It does not
consider all eyewitness identifications suspect. The language
proposed by this bill uses some of the same language in the
instruction codified in Penal Code Section 1127a relating to
in-custody informants. Penal Code 1127a(b) requires the court to
instruct the jury as follows: "The testimony of an in custody
informant should be viewed with caution and close scrutiny. In
evaluating such testimony, you should consider the extent to
which it may have been influenced by the receipt of, or
expectation of, any benefits from the party calling that
witness. This does not mean that you may arbitrarily disregard
such testimony, but you should give it the weight to which you
find it to be entitled in the light of all the evidence in the
case." (Emphasis added.)
8. Expert Testimony
This bill would allow expert testimony to be admitted regarding
factors that affect the reliability of eyewitness
identification, including the identification procedure, if the
(More)
AB 604 (Ammiano)
PageV
proponent of the evidence establishes the relevancy and proper
qualifications of the witness. This would allow a prosecutor to
have a witness testify to the reliability of the eyewitness
identification method that was used by law enforcement in the
case or would allow the defense to have a witness to testify why
the methods used were flawed or lacking reliability.
9. Support
The California Public Defenders are co-sponsoring this bill.
They note:
Numerous studies have shown that faulty eyewitness
identification is one of the most common causes of
wrongful convictions. A comprehensive compilation of
all exonerations in the United States from 1989 through
2003 was recently published by a group of researchers
at the University of Michigan, led by Professor Samuel
R. Gross. The researchers confined their study to
cases in which there was an official act declaring a
defendant not guilty of a crime for which he or she had
previously been convicted, such as a pardon based upon
evidence of innocence, or dismissal after new evidence
of innocence emerged, such as DNA testing. They
identified 340 such cases, 27 of which occurred in
California. Of these 340 cases, 60% were convicted of
murder, and 36% convicted of rape or sexual assault.
Mistaken eyewitnesses accounted for 88% of wrongful
rape and sexual assault convictions, and DNA testing
provided the basis for later exonerations. This
suggests that unexposed mistaken eyewitness
identification could be present in other convictions
that rely heavily on eyewitness identification, such as
robbery, where DNA evidence is not normally present.
The International Association of Chiefs of Police,
National Law Enforcement Policy Center in its September
2010 revised paper on Eyewitness Identification
underscored the role of improper suggestion and thus
the need to reform eyewitness identification
(More)
AB 604 (Ammiano)
PageW
procedures, stating:
"Although the evidence provided by eyewitnesses
can be tremendously helpful in the development of
leads, identifying criminals, and exonerating the
innocent-it is subject to error. Civilian
eyewitnesses frequently prove to be unreliable
observers, and erroneous identifications are
sometimes the result. Misidentifications by
eyewitnesses are normally the result of a
combination of factors. For example, human
perception tends to be inaccurate, especially
under stress. The average citizen, untrained in
observation and placed under extreme stress as a
victim of or witness to a crime, may not be able
to describe a perpetrator accurately, sometimes
even after coming face-to-face with the
individual. Also, a witness, particularly one who
is not really sure what the perpetrator actually
looked like, may be easily influenced by
suggestions conveyed to him or her during the
identification process."
(More)
In United States v. Wade, the Supreme Court of the
United States
recognized these facts in saying:
The influence of improper suggestions
upon identifying witnesses
probably accounts for more miscarriages
of justice than any
other single factor. Perhaps it is
responsible for more such errors
than all other factors combined.
The ACLU, also a co-sponsor of this bill notes:
Mistaken eyewitness identification is one of the
greatest causes of wrongful convictions. Seventy-five
percent of convictions overturned through DNA testing
involved mistaken identifications by eyewitnesses.
According to the National Registry of Exonerations,
forty nine innocent people have been exonerated in
California due to mistaken eyewitness identification,
just since 1989. This includes Franky Carrillo, who at
the age of only 16 became a suspect in a drive by
shooting after police mistakenly identified him as the
shooter in another incident. Mr. Carrillo was released
from prison a free man in March of 2011 after spending
twenty years in prison fighting for his innocence.
10. Opposition
CDAA opposes this bill stating:
AB 604 is a backhanded attempt to legislate specific
investigatory law enforcement techniques without
actually requiring their use. Though AB 604 mandates
no particular procedure be used, it requires a court to
give a potentially damaging jury instruction if the
optional procedures are not followed to the letter.
(More)
AB 604 (Ammiano)
PageY
Perhaps more troubling is the fact that many of the
guidelines set forth in the bill have been shown to
actually decrease accurate identifications of suspects.
The proponents will undoubtedly point to research
indicating that the use of blind, sequential lineups
tends to reduce incorrect identifications. What they
neglect to include is that recent research shows that
these same reports indicate that these procedures also
result in fewer correct identifications of suspects.
In a 2012 paper entitled "Costs and Benefits of
Eyewitness Identification Reform: Psychological Science
and Public Policy," Steven E. Clark of the University
of California at Riverside notes "Correct
identifications of the guilty are lost as false
identifications of the innocent are avoided."
Prosecutors strive to ensure that no person is
wrongfully convicted. Unfortunately, this bill will
jeopardize righteous cases by effectively requiring
investigatory methods that reduce accurate
identification of guilty parties.
***************