BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 807|
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THIRD READING
Bill No: AB 807
Author: Ammiano (D)
Amended: 9/10/13 in Senate
Vote: 21
PRIOR VOTES NOT RELEVANT
SUBJECT : Criminal investigations: eyewitness identification
SOURCE : Author
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.
Senate Floor Amendments of 9/10/13 delete the Assembly version
of the bill, which dealt with complaints received by law
enforcement, and instead add the current language previously
contained in AB 604 (Ammiano).
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.
5. 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
OPPOSITION : (Verified 9/12/13)
AFSCME, Local 685
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Fraternal Order of Police
California Narcotic Officers Association
California Police Chiefs Association
Coalition of Law Enforcement Associations
Judicial Council of California
Long Beach Police Officers Association
Los Angeles County Probation Officers Union
Los Angeles District Attorney's Office
Los Angeles Police Protective League
Los Angeles Professional Peace Officers Association
Riverside Sheriffs Association
Sacramento Deputy Sheriffs Association
Santa Ana Police Officers Association
Southern California Alliance of Law Enforcement
JG:d 9/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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