Amended in Senate September 10, 2013

Amended in Assembly April 11, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 807

Introduced by Assembly Member Ammiano

February 21, 2013

begin delete An act to amend Sections 13010.5, 13012, and 13012.5 of the Penal Code, relating to criminal justice statistics. end delete begin insert 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. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 807, as amended, Ammiano. begin delete Criminal justice statistics. end delete begin insert Criminal investigations: eyewitness identification. end insert

begin insert

Existing law allows opinion testimony from expert witnesses to be admitted at trial upon specified showings.

end insert begin insert

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 insert begin insert

Existing law generally regulates the collection and admissibility of evidence for purposes of criminal prosecutions.

end insert begin insert

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 insert begin insert

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 insert begin insert

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 insert begin delete

Existing law requires the Department of Justice to collect specified criminal justice information from local law enforcement agencies, to tabulate, analyze, and interpret the collected data, and to prepare an annual report presenting the criminal justice statistics for the previous year.

end delete begin delete

This bill would require the Department of Justice to include in the annual report additional statistical information relating to complaints received by law enforcement agencies, as specified, and criminal convictions of peace officers. The bill would also make technical, nonsubstantive changes.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program: no.

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

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begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares the following:

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

end insert begin insert

(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.

end insert begin insert

(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.

end insert begin insert

(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.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 806 is added to the end insert begin insert Evidence Code end insert begin insert , to read: end insert

begin insert

begin insert 806. end insert   

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.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 686.3 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 686.3. end insert   

(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.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

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

begin insert

begin insert 1127i. end insert   

(a) 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 the local
law enforcement agency in that jurisdiction has adopted the
recommended live and photo eyewitness identification procedures
listed in Section 686.3, the court shall instruct the jury as follows
or admonish the jury with a substantially similar instruction:

(1) The procedures listed in Section 686.3 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.

(2) 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.

(3) If police officers did not follow the procedures recommended
in Section 686.3, 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.

(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.

(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

begin delete

SECTION 1.  

Section 13010.5 of the Penal Code is amended
to read:

13010.5.  

The department shall collect data pertaining to the
juvenile justice system for criminal history and statistical purposes.
This information shall serve to assist the department in complying
with the reporting requirement of paragraphs (3) and (4) of
subdivision (a) of Section 13012, measuring the extent of juvenile
delinquency, determining the need for and effectiveness of relevant
legislation, and identifying long-term trends in juvenile
delinquency. Any data collected pursuant to this section may
include criminal history information which may be used by the
department to comply with the requirements of Section 602.5 of
the Welfare and Institutions Code.

SEC. 2.  

Section 13012 of the Penal Code is amended to read:

13012.  

(a) The annual report of the department provided for
in Section 13010 shall contain statistics showing all of the
following:

(1) The amount and the types of offenses known to the public
authorities.

(2) The personal and social characteristics of criminals and
delinquents.

(3) The administrative actions taken by law enforcement,
judicial, penal, and correctional agencies or institutions, including
those in the juvenile justice system, in dealing with criminals or
delinquents.

(4) The administrative actions taken by law enforcement,
prosecutorial, judicial, penal, and correctional agencies, including
those in the juvenile justice system, in dealing with minors who
are the subject of a petition or hearing in the juvenile court to
transfer their case to the jurisdiction of an adult criminal court or
whose cases are directly filed or otherwise initiated in an adult
criminal court.

(5) (A) The total number of each of the following:

(i) Citizens’ complaints received by law enforcement agencies
under Section 832.5.

(ii) Complaints received by law enforcement agencies against
the personnel of a department or agency that employs peace officers
that are made by that personnel’s supervisor or by the personnel
of another department or agency that employs peace officers.

(iii) Complaints received by law enforcement agencies against
the personnel of a department or agency that employs peace officers
in which the identity of the complainant is unknown.

(B) The department shall categorize each complaint into one of
the categories identified in clauses (i) to (viii), inclusive, and report
the number of complaints received by law enforcement agencies
within each of those categories.

(i) “Excessive force,” which means a complaint regarding the
use or threatened use of excessive force against a person.

(ii) “Improper arrest,” which means a complaint that the restraint
of a person’s liberty was improper or unjust, or violated the
person’s civil liberties.

(iii) “Improper entry,” which means a complaint that the entry
into a building or onto property was improper or that excessive
force was used against property to gain entrance into a building
or onto property.

(iv) “Improper search,” which means a complaint that the search
of a person or property was improper.

(v) “Other criminal violation,” which means a complaint
regarding the commission of an illegal act not otherwise specified.

(vi) “Differential treatment,” which means a complaint that the
taking, failure to take, or method of police action was predicated
upon irrelevant factors, including, but not limited to, race,
appearance, age, or sex.

(vii) “Demeanor,” which means a complaint that the personnel’s
bearing, gestures, language, or other characteristics or actions were
inappropriate.

(viii) “Other rule violation,” which means a complaint for
conduct that violates agency rules, but that is not encompassed in
a category specified in clauses (i) to (vii), inclusive.

(C) The statistics required to be reported pursuant to this
paragraph shall indicate, within each category of complaint
identified in subparagraph (B), the number of complaints within
each of the following disposition categories:

(i) “Sustained,” which means that the investigation disclosed
sufficient evidence to prove the truth of the allegation in the
complaint by a preponderance of the evidence.

(ii) “Exonerated,” which means that the investigation clearly
established that the actions of the personnel that formed the basis
of the complaint are not a violation of law or agency policy.

(iii) “Not sustained,” which means that the investigation failed
to disclose sufficient evidence to clearly prove or disprove the
allegation in the complaint.

(iv) “Unfounded,” which means that the investigation clearly
established that the allegation is not true.

(D) The statistics required to be reported pursuant to this
paragraph shall be reported for each individual law enforcement
agency.

(6) The total number of felony and misdemeanor convictions
incurred by peace officers for conduct occurring either on- or
off-duty.

(b) It shall be the duty of the department to give adequate
interpretation of the statistics and so to present the information
that it may be of value in guiding the policies of the Legislature
and of those in charge of the apprehension, prosecution, and
treatment of the criminals and delinquents, or concerned with the
prevention of crime and delinquency. The report shall also include
statistics which are comparable with national uniform criminal
statistics published by federal bureaus or departments heretofore
mentioned.

SEC. 3.  

Section 13012.5 of the Penal Code is amended to read:

13012.5.  

(a) The annual report published by the department
under Section 13010 shall, in regard to the contents required by
subdivision (d) of Section 13012, include the following statewide
information:

(1) The annual number of fitness hearings held in the juvenile
courts under Section 707 of the Welfare and Institutions Code,
and the outcomes of those hearings including orders to remand to
adult criminal court, cross-referenced with information about the
age, gender, ethnicity, and offense of the minors whose cases are
the subject of those fitness hearings.

(2) The annual number of minors whose cases are filed directly
in adult criminal court under Sections 602.5 and 707 of the Welfare
and Institutions Code, cross-referenced with information about the
age, gender, ethnicity, and offense of the minors whose cases are
filed directly to the adult criminal court.

(3) The outcomes of cases involving minors who are prosecuted
in adult criminal courts, regardless of how adult court jurisdiction
was initiated, including whether the minor was acquitted or
convicted, or whether the case was dismissed and returned to
juvenile court, including sentencing outcomes, cross-referenced
with the age, gender, ethnicity, and offense of the minors subject
to these court actions.

(b) The department’s annual report published under Section
13010 shall include the information described in paragraph (4) of
subdivision (a) of Section 13012, as further delineated by this
section, beginning with the report due on July 1, 2003, for the
preceding calendar year.

end delete