BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 604|
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THIRD READING
Bill No: AB 604
Author: Ammiano (D)
Amended: 8/13/13 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 7/2/13
AYES: Hancock, Block, De León, Liu, Steinberg
NOES: Anderson, Knight
ASSEMBLY FLOOR : 41-34, 5/30/13 - See last page for vote
SUBJECT : Criminal investigations: eyewitness identification
SOURCE : American Civil Liberties Union
California Public Defenders Association
DIGEST : This bill 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.
ANALYSIS :
Existing law:
1. Provides that no evidence is admissible unless it is
relevant.
CONTINUED
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2. Provides that all relevant evidence is admissible unless it
is made inadmissible by some constitutional or statutory
provision.
3. 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.
4. 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/her capacity to perceive, to recollect, or to
communicate any matter about which he testifies.
5. Limits the testimony of lay or nonexpert witness only to
facts perceived by use of the witness's own senses.
6. Provides that a person is qualified to testify as an expert
if he/she has special knowledge, skill, experience, training,
or education sufficient to qualify him/her as an expert on
the subject to which his testimony relates.
This bill:
1. 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.
2. 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
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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:
(1) That the perpetrator may not be among the
persons in the identification
Procedure.
(2) That the eyewitness should not feel compelled to
make an identification.
(3) That an identification or failure to make one
will not end the investigation.
A. If the identification procedure is being done
sequentially, instruct an eyewitness of all of the
following prior to the identification procedure:
(1) Each photograph or person shall be viewed one at
a time.
(2) The photographs or persons shall be displayed in
random order.
(3) The eyewitness should take as much time as
needed in making a decision about each photograph or
person before moving to the next one.
(4) All photographs or persons will be shown to the
eyewitness, even if an identification is made before
all photographs or persons have been viewed.
A. 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/her appearance at the time of the offense
and does not unduly stand out.
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B. 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.
C. In a live lineup, have any identification actions, such
as speaking or making gestures or other movements, be
performed by all lineup participants.
D. All live lineup participants shall be out of the view of
the eyewitness prior to the beginning of the
identification procedure.
E. Have only one suspected perpetrator included in any
identification procedure.
F. Have all witnesses separated when viewing an
identification procedure.
G. If the eyewitness identifies a person he/she believes to
be the perpetrator, then have all of the following apply:
(1) The investigator shall immediately inquire as to
the eyewitness's confidence level in the accuracy of
the identification.
(2) No information concerning the identified person
shall be given to the eyewitness prior to obtaining the
eyewitness's statement of confidence level.
A. Have a written record of the identification procedure be
made that includes, at a minimum, all of the following:
(1) All identification and non-identification
results obtained during the identification procedure
and signed by the eyewitness.
(2) A statement of the eyewitness' own words
regarding how certain he/she is regarding the accuracy
of his/her identification and signed by him/her.
(3) The names of all persons present at the
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identification procedure.
(4) The date, time, and location of the
identification procedure.
(5) If the identification procedure was conducted
sequentially, the order in which the photographs or
persons were displayed to the eyewitness.
(6) Color copies of all photographs used in a photo
lineup.
(7) Identification information and the sources of
all photographs used in a photo lineup.
(8) Identification information for all individuals
used in a live lineup and a video.
1. Defines the following terms:
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
additional photographs of other persons not suspected of
the offense, is displayed to an eyewitness for the purpose
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of determining whether the eyewitness is able to identify
the suspect as the perpetrator.
1. 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 the recommended
live and photo eyewitness identification procedures, the
court shall instruct the jury as follows or admonish the jury
with a substantially similar instruction:
A. The specified procedures 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 specified
procedures recommended, consider the eyewitness
identification with caution and close scrutiny. This does
not mean that you may arbitrarily disregard his/her
testimony, but you should give it the weight you think it
deserves in the light of all the evidence in the case.
1. Makes legislative findings and declarations regarding
eyewitness identification procedures.
Background
The California Commission on the Fair Administration of Justice
(Commission) was created "to study and review the administration
of criminal justice in California, to determine the extent to
which that process has failed in the past," and to examine
safeguards and improvements, and recommend proposals to ensure
that the administration of justice in California is just, fair,
and accurate. The Commission addressed the issue of eyewitness
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identification in its first report and recommendations on April
13, 2006. The report summarizes current research in the area of
mistaken eyewitness identification and makes recommendations for
improving the criminal justice system.
Following the Commission guidelines, Santa Clara County District
Attorney's Office and some local law enforcement agencies have
adopted policies consistent to those recommended by the
Commission, including a lineup protocol requiring double-blind
and sequential identification procedures, and have agreed to the
protocol without dissent. It has been successfully implemented
for over six years without complaint.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 8/14/13)
American Civil Liberties Union (co-source)
California Public Defenders Association (co-source)
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
OPPOSITION : (Verified 8/14/13)
California District Attorneys Association
California Judges Association
California State Sheriffs' Association
Judicial Council of California
Los Angeles County District Attorney's Office
ARGUMENTS IN SUPPORT : This bill's sponsor, the California
Public Defenders Association, notes, "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.
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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."
ARGUMENTS IN OPPOSITION : California District Attorneys
Association
states:
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.
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
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reduce accurate identification of guilty parties.
ASSEMBLY FLOOR : 41-34, 5/30/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chesbro, Cooley, Dickinson, Fong, Garcia, Gomez,
Gonzalez, Gordon, Hall, Roger Hernández, Jones-Sawyer,
Lowenthal, Medina, Mitchell, Mullin, Nazarian, Pan, Quirk,
Rendon, Skinner, Stone, Ting, Weber, Wieckowski, Williams,
Yamada, John A. Pérez
NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Dahle,
Donnelly, Frazier, Beth Gaines, Gatto, Gorell, Gray, Grove,
Hagman, Harkey, Jones, Levine, Linder, Logue, Maienschein,
Mansoor, Melendez, Morrell, Muratsuchi, Nestande, Olsen,
Patterson, Perea, V. Manuel Pérez, Quirk-Silva, Salas, Wagner,
Waldron, Wilk
NO VOTE RECORDED: Daly, Eggman, Fox, Holden, Vacancy
JG:k 8/14/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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