BILL ANALYSIS Ó
AB 2411
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Date of Hearing: April 29, 2014
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2411 (Bonta) - As Amended: April 21, 2014
SUMMARY : Requires the Attorney General (AG), on or before
January 1, 2016, to develop a set of guidelines governing the
collection of eyewitness evidence, as specified. Specifically,
this bill :
1)Requires the AG, on or before January 1, 2016, to develop a
set of guidelines governing the collection of eyewitness
evidence in showups, photo arrays, and live lineups.
2)Provides that the AG shall develop the eyewitness
identification guidelines by collecting and reviewing the
current best practices to reduce the misidentification of
persons in eyewitness lineups that are in use in this state.
3)Requires the AG, in developing eyewitness guidelines, to
specifically take into account local procedures that prohibit
a person who is familiar with the identity of a suspect from
being present while the lineup is conducted.
EXISTING LAW :
1)Provides that no evidence is admissible unless it is relevant.
(Evid. Code, § 350.)
2)Provides that all relevant evidence is admissible unless it is
made inadmissible by some constitutional or statutory
provision. (Evid. Code, § 351.)
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. (Cal.
Const., art. I, sec. 28(d).)
4)States that in determining the credibility of a witness, the
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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. (Evid. Code,
§ 780(c).)
5)Limits the testimony of lay or nonexpert witness only to facts
perceived by use of the witness's own senses. (Evid. Code, §
800(a).)
6)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. (Evid. Code,
§720(a).)
7)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:
a) Related to a subject sufficiently beyond common
experience that the opinion of an expert would assist the
trier of fact; and,
b) Based on matter (including his or her special knowledge,
skill, experience, training, and education) perceived by or
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.
(Evid. Code, § 801.)
8)States that eyewitness testimony has been received in this
trial for the for the purpose of identifying the defendant as
the perpetrator of the crime charged. In determining the
weight to be given eyewitness identification testimony, you
should consider the believability of the eyewitness as well as
other factors which bear on the accuracy of the witness
identification of the defendant, including, but not limited
to, any of the following:
a) The opportunity of the witness to observe the alleged
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criminal act and the perpetrator of the act;
b) The stress, if any, to which the witness was subjected
at the time of the observation;
c) The witness' ability, following the observation, to
provide a description of the perpetrator of the act;
d) The extent to which the defendant either fits or does
not fit the description of the perpetrator previously given
by the witness;
e) The cross racial or ethnic nature of the identification;
f) The witness' capacity to make an identification;
g) Evidence relating to the witness' ability to identify
other alleged perpetrators of the criminal act;
h) Whether the witness was able to identify the alleged
perpetrator in a photographic or physical lineup;
i) The period of time between the alleged criminal act and
the identification;
j) Whether the witness had prior contacts with the alleged
perpetrator;
aa) The extent to which the witness is either certain or
uncertain of the identification;
bb) Whether the witness' identification is the product of
his or her own recollection; and,
cc) Any other evidence relating to the witness' ability to
make an identification.
(Calif. Jury Instructions Criminal 2.91.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The introduced
version of the bill requires the AG to develop guidelines
governing the collection of eyewitness evidence in showups,
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photo arrays, and live lineups. The introduced version of the
bill requires that the guidelines include a requirement that
the administrator of a lineup be a neutral independent
administrator, when feasible, and that a person who is
familiar with the identity of a suspect who is participating
in a photographic lineup or physical lineup shall not be
present during the administration of the lineup.
"The amended version of the bill deletes the two latter
provisions relating to the specific guideline requirements.
Instead, we've submitted amendments to specifically require
the AG to take into account those practices that require a
blind administrator to conduct the lineup in her collection of
procedures. Therefore, we are not presupposing that we know
the best practices; we are giving the AG the discretion to
make that determination. In making that determination, we are
mandating that she thoroughly review blind lineup procedures
in order to finally obtain an objective statewide overview of
the effectiveness of those procedures."
2)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 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
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were as follows:<1>
a) 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.
b) 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.)
c) 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;
d) 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;
e) 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;
f) At the conclusion of a lineup, photo presentation, or
--------------------------
<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
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show-up, a witness who has made identification should
describe his or her level of certainty, and that statement
should be recorded or otherwise 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;
g) 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;
h) Photo spreads and lineups should be presented to only
one witness at a time; where separate presentation is not
practicable, witnesses should be separated so they are not
aware of the responses of other witnesses;
i) 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;
j) 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;
aa) 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 current scientific research
regarding cross-racial identifications and the relevance of
the degree of certainty expressed by witnesses in court;
and (Members Lockyer, Fox and Totten dissented to this
recommendation, see below.)
bb) The Commission recognizes that criminal justice
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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 believe 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
noted that the Advisory Committee invites suggestions and the
Judicial Council regularly seeks comment.
In light of the existing extensive recommendations of the bi
-partisan Commission on the Fair Administration of Justice
relating to eyewitness identification procedures, do we need
another set of guidelines governing the collection of
eyewitness identification evidence?
3)Constitutional Implications : The United States Supreme Court
has recognized that "the vagaries of eyewitness identification
are well known, the annals of criminal law are rife with
instances of mistaken identification." [United States v. Wade
(1967) 388 U.S. 218, 228.] The Court has recognized due
process is denied if the identification procedures used are so
unduly suggestive as to give rise to a substantial likelihood
of mistaken identification. [Neil v. Biggers (1972) 409 U.S.
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188, 196-98.] Additionally, an identification made at trial
which is derived from suggestive pretrial identification
procedures violates due process. [Id. at p. 196; see also
Simmons vs. United States (1968) 390 U.S. 377, 384.]
4)Prior Legislation:
a) AB 308 (Ammiano), of the 2011-12 Legislative Session,
would have provided that on or before July 1, 2012 the
Department of Justice (DOJ) and the Commission on Peace
Officers Standards and Training (POST), in consultation
with local law enforcement' prosecutors, defense attorneys,
and other legal experts, as specified, shall develop
guidelines for policies and procedures with respect to the
collection and handling of eyewitness evidence. AB 308 was
held on the Senate Appropriations Committee's Suspense
File.
b) SB 1591 (Ridley-Thomas), of the 2007-08 Legislative
Session, would have required the Department of Justice, in
consultation with specified law enforcement-related
entities, to develop guidelines for policies and procedures
with respect to collection and handling of eyewitness
evidence in criminal investigations by all law enforcement
agencies operating in California. SB 1591 was held on the
Senate Appropriations Committee's Suspense File.
c) SB 1544 (Migden), of the 2005-06 Legislative Session,
also addressed the need for guidelines in eyewitness
identifications. SB 1544 was vetoed.
5)Pending Legislation : AB 804 (Ammiano) of the 2013-2014
Legislative Session authorizes law enforcement agencies to
adopt regulations for conducting in person and photo line-ups;
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. AB 804 is
pending on the Senate Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 2411
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Taxpayers for Improving Public Safety
Opposition
California State Sheriffs' Association
Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744