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

This bill would, commencing January 1, 2020, require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications. The bill would require the regulations to comply with specified requirements, including that prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program. The bill would also include a statement of legislative findings and declarations.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

This bill would, commencing January 1, 2020, require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications. The bill would require the regulations to comply with specified requirements, including that prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program. The bill would also include a statement of legislative findings and declarations.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

This bill would would, commencing January 1, 2020, require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications. The bill would require the regulations to comply with specified requirements, including that prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program. The bill would also include a statement of legislative findings and declarations.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications. The bill would require the regulations to comply with specified requirements, including that prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program. The bill would also include a statement of legislative findings and declarations.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications. The bill would require the regulations to comply with specified requirements, including that prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program. The bill would also include a statement of legislative findings and declarations.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses, as those terms would be defined by the bill, to ensure reliable and accurate suspect identifications. The bill would require the regulations to comply with specified requirements, including that prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense. By imposing a higher level of service on local law enforcement and prosecutorial entities, the bill would impose a state-mandated local program. The bill would also include a statement of legislative findings and declarations.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

 UNFINISHED BUSINESS  

Bill No: SB 923

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 4/10/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Stone

SENATE APPROPRIATIONS COMMITTEE: 5-1, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Nielsen

NO VOTE RECORDED: Bates

SENATE FLOOR: 27-8, 5/30/18

AYES: Allen, Anderson, Atkins, Beall, Berryhill, Bradford, Cannella, Dodd, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Skinner, Wieckowski, Wiener, Wilk

NOES: Bates, Moorlach, Morrell, Newman, Nguyen, Nielsen, Stone, Vidak

NO VOTE RECORDED: De León, Fuller, Gaines, Stern

ASSEMBLY FLOOR: Not available

SUBJECT:

SOURCE: ACLU California

California Innocence Project

Loyola Law School Project for the Innocent

Northern California Innocence Project

DIGEST:

This bill requires all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses.

Assembly Amendments

clarify that the witness’ confidentiality level shall be noted verbatim in writing; clarify that the filler pictures shall meet the description of the person by the witness; provide that when video is not feasible audio recording can be used and that the officer shall state the reason video was not feasible; clarify that it does not impact field show up procedures; and, delay implementation to January 1, 2020.

ANALYSIS: Existing law sets forth various aspects of criminal procedure.

This bill:

1. Provides that all law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses.
2. Provides that the regulations shall be developed to ensure reliability and accuracy suspect identifications.
3. Provides that in order to ensure reliability and accuracy, the regulations created pursuant to this bill shall comply with the following requirements at a minimum:
   1. Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall complete a standardized form describing the perpetrator of the offense.
   2. The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.
   3. The investigator shall state in writing the reason that the presentation of the lineup was not conducted using blind administration or blinded administration.
   4. An eyewitness shall be instructed of the following, prior to any identification procedure:
      1. The perpetrator may not be among the persons in the identification procedure.
      2. The eyewitness should not feel compelled to make an identification.
      3. An identification or failure to make an identification will not end the investigation.
   5. An identification procedure shall be composed so that all 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 should resemble his or her appearance at the time of the offense and does not unduly stand out.
   6. In a photo lineup, no writings or information concerning any previous arrest of the person suspected as the perpetrator shall be visible to the eyewitness.
   7. Only one suspected perpetrator shall be included in any identification procedure.
   8. All witnesses shall be separated when viewing an identification procedure.
   9. Nothing shall be said to the eyewitness that might influence the eyewitness's selection of the person suspected as the perpetrator.
   10. If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
       1. The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification.
       2. Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level and documenting the exact words of the eyewitness.
       3. The officer shall not at any time, validate the eyewitness’ identification.
   11. An electronic recording shall be made that includes both audio and visual representations of the identification.
4. Defines specified terms as follows:
   1. Blind: the administrator of an eyewitness identification procedure does not know the identity of the suspect.
   2. Blinded administration: the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification through either of the following:
      1. An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed.
      2. The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is complete.
   3. Eyewitness: a person whose identification of another person may be relevant in a criminal investigation.
   4. Photo lineup: 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.
   5. Live lineup: 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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
   6. Investigator: the person conducting the live or photo lineup.
   7. Identification procedure: either a photo lineup or a live lineup.
   8. Filler: either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.
   9. Photo lineup: 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, are displayed to an eyewitness for the purpose of determining whether the eyewitnesses is able to identify the suspect as the perpetrator.
5. Makes a number of uncodified findings and declarations.

Background

1. Identification Procedures

This bill requires all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses. The bill sets forth minimum requirements for these policies

According to the California Innocence Projects:

SB 923 would put California in line with 19 other states that have already adopted best practices state-wide to improve eyewitness identification procedures. The bill mandates consistency between all law enforcement agencies in our state to follow these practices: 1) that the administrator of the eyewitness procedure is blind or blinded to the identity of the suspect to ensure a witness is not inadvertently cued to select that person; 2) that appropriate fillers are used to make sure the suspect does not stand out in any way; 3) that the eyewitness is properly admonished prior to the procedure informing them the perpetrator may or may not be in the photo array; 4) that the eyewitness provides a statement of confidence following their identification, and 5) that the entire procedure is video recorded.

1. Recommendations of the Commission on the Fair Administration of Justice

The Commission on the Fair Administration of Justice was created by SR 44 (Burton, 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.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee:

1. Unknown significant onetime costs, likely in the hundreds of thousands of dollars, for state entities with law enforcement responsibilities to promulgate regulations and train staff.
2. Unknown costs, likely totaling the hundreds of thousands of dollars annually, for state entities with law enforcement responsibilities to handle an increase in workload related to more lengthy and involved lineups, in some cases requiring additional staff.
3. Unknown significant, potentially reimbursable mandated local costs, potentially in the hundreds of thousands of dollars to low millions of dollars annually, for local law enforcement agencies. These costs include onetime costs to adopt line up procedures and train staff and potential ongoing costs to the extent additional staff are needed to implement lineup best practices.

SUPPORT: (Verified 8/27/18)

ACLU California (co-source)

California Innocence Project (co-source)

Loyola Law School Project for the Innocent (co-source)

Northern California Innocence Project (co-source)

California Public Defenders Association

Conference of California Bar Associations

Legal Services for Prisoners with Children

Los Angeles District Attorney’s Office

Root and Rebound

San Francisco Public Defender

OPPOSITION: (Verified 8/27/18)

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California Narcotic Officers Association

Los Angeles County Professional Peace Officers Association

Prepared by:

8/31/18 22:03:06

**** END ****

SENATE THIRD READING

STR Bill Id:SB 923

Author:(Wiener)

As Amended Ver:August 23, 2018

Majority vote

SENATE VOTE: 27-8

SUMMARY: Requires law enforcement agencies and prosecutors to adopt regulations for conducting photo and live lineups with eye witnesses. Specifically, this bill:

1. Provides that all law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses.
2. Requires that the regulations be developed to ensure reliability and accurate suspect identifications, and comply with the following minimum requirements:
   1. The eyewitness must complete a standardized form describing the perpetrator of the offense before conducting the identification procedure, and as close in time to the incident as possible;
   2. The person conducting the identification procedure must use blind administration or blinded administration during the identification procedure;
   3. If blind administration is not used, the investigator shall state in writing the reason that the presentation of the lineup was not so conducted;
   4. Before an identification procedure, an eyewitness must be told that the perpetrator may or may not be among the persons in the lineup, that the eyewitness should not feel compelled to make an identification, and, that neither an identification nor the failure to make one will not end the investigation;
   5. The identification procedure must be composed so that all fillers generally fit the eyewitness' description of the suspect, and, in the case of a photo lineup, the photograph of the suspect should, if practicable, resemble his or her appearance at the time of the offense and not unduly stand out;
   6. When conducting a photo lineup, writings or information about any previous arrest of the suspect cannot be visible to the eyewitness;
   7. Only one suspect shall be included in any identification procedure;
   8. All eyewitnesses must be separated when viewing a line up;
   9. Nothing shall be said to the eyewitness that might influence his or her selection of the person suspected as the perpetrator;
   10. An electronic recording shall be made that includes both audio and visual representations of the identification, when feasible, otherwise, an audio recording shall be used; and,
   11. If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
       1. The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification and record in writing what he or she says;
       2. Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level and documenting the exact words of the eyewitness; and,
       3. The officer shall not validate or invalidate the eyewitness' identification.
3. Provides that this bill does not affect policies for in field show up procedures.
4. Defines the following terms:
   1. ''Blind administration'' means ''the administrator of an eyewitness identification procedure does not know the identity of the suspect.''
   2. ''Blinded administration'' means ''the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification procedure through the use of either of the following:''
      1. ''An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed'';
      2. ''The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is completed;'' or,
      3. Any other procedure that achieves neutral administration and prevents the lineup administrator from knowing where the suspect, or his or her photo, has been positioned.
   3. ''Eyewitness'' means ''a person whose identification of another person may be relevant in a criminal investigation.''
   4. "Field show up" means "a procedure in which a suspect is detained shortly after the commission of a crime and who, based on his or her appearance, distance from the crime scene, or other circumstantial evidence, is suspected of having just committed a crime. In these situations, the victim or eyewitness is brought to the scene of the detention and is asked if the detainee was the perpetrator."
   5. ''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.''
   6. ''Identification procedure'' means ''either a photo lineup or a live lineup.''
   7. ''Investigator'' means ''the person conducting the identification procedure.''
   8. ''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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.''
   9. ''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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.''
5. Contains legislative findings and declarations about the importance of valid eyewitness identification.
6. States that nothing in these provisions is intended to preclude the admissibility of any relevant evidence or to affect the standards governing the admissibility of evidence under the United States Constitution.
7. Delays implementation until January 1, 2020.

EXISTING LAW:

1. Provides that evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him or her while testifying and the following conditions are met:
   1. The statement is an identification of a party or another as a person who participated in a crime or other occurrence;
   2. The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and,
   3. The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.
2. Provides that the testimony of a witness concerning a particular matter is inadmissible unless he or she has personal knowledge of the matter, except to the extent that a person is giving opinion testimony as an expert witness.
3. States that, except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his or her testimony at the hearing, including but not limited to any of the following:
   1. His or her demeanor while testifying and the manner in which he or she testifies;
   2. The character of his or her testimony;
   3. The extent of his or her capacity to perceive, to recollect, or to communicate any matter about which he testifies;
   4. The extent of his or her opportunity to perceive any matter about which he or she testifies;
   5. His or her character for honesty or veracity or their opposites;
   6. The existence or nonexistence of a bias, interest, or other motive;
   7. A statement previously made by him or her that is consistent with his or her testimony at the hearing;
   8. A statement made by him or her that is inconsistent with any part of his or her testimony at the hearing;
   9. The existence or nonexistence of any fact testified to by him or her;
   10. His or her attitude toward the action in which he testifies or toward the giving of testimony; and,
   11. His or her admission of untruthfulness.
4. Provides 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:
   1. Related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
   2. 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.
5. Holds that a suggestive pretrial photo spread procedures may taint in-court identifications sufficient to deny the accused due process of law.
6. Holds that since it is the likelihood of misidentification that violates a defendant's right to due process, even a suggestive identification procedure does not violate due process so long as the identification possesses sufficient reliability.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown significant onetime costs, likely in the hundreds of thousands of dollars, for state entities with law enforcement responsibilities to promulgate regulations and train staff.
2. Unknown costs, likely totaling the hundreds of thousands of dollars annually, for state entities with law enforcement responsibilities to handle an increase in workload related to more lengthy and involved lineups, in some cases requiring additional staff.
3. Unknown significant, potentially reimbursable mandated local costs, potentially in the hundreds of thousands of dollars to low millions of dollars annually, for local law enforcement agencies. These costs include onetime costs to adopt line up procedures and train staff and potential ongoing costs to the extent additional staff are needed to implement lineup best practices.

COMMENTS: According to the author, ''Compliance with best practices improves the reliability of valid eyewitness identification. Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California eyewitness misidentification contributed to 66 wrongful convictions, including 12 out of the 13 DNA-based exonerations. Wrongful convictions involving eyewitness misidentification threatens public safety because when an innocent person is convicted the real perpetrator remains undetected and could harm others. The actual culprits in California's DNA exoneration cases went on to be convicted of nine additional violent crimes including six murders and two rapes.

''There is currently no statewide standard requiring law enforcement to use best practices. Although law enforcement agencies in San Francisco, Alameda, Contra Costa, and Santa Clara Counties are amongst some of the California jurisdictions that follow some of the recommended procedures.

''Nationally, 19 states have adopted state requirements for eyewitness identification procedures including Georgia, Nebraska, North Carolina, Ohio, Texas, and West Virginia. These evidence-based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of the Sciences, the U.S. Department of Justice, the American Bar Association, and the International Association of Chiefs of Police.''

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0004676

SENATE THIRD READING

STR Bill Id:SB 923

Author:(Wiener)

As Amended Ver:August 20, 2018

Majority vote

SENATE VOTE: 27-8

SUMMARY: Requires law enforcement agencies and prosecutors to adopt regulations for conducting photo and live lineups with eye witnesses. Specifically, this bill:

1. Provides that all law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses.
2. Requires that the regulations be developed to ensure reliability and accurate suspect identifications, and comply with the following minimum requirements:
   1. The eyewitness must complete a standardized form describing the perpetrator of the offense before conducting the identification procedure, and as close in time to the incident as possible;
   2. The person conducting the identification procedure must use blind administration or blinded administration during the identification procedure;
   3. If blind administration is not used, the investigator shall state in writing the reason that the presentation of the lineup was not so conducted;
   4. Before an identification procedure, an eyewitness must be told that the perpetrator may or may not be among the persons in the lineup, that the eyewitness should not feel compelled to make an identification, and, that neither an identification nor the failure to make one will not end the investigation;
   5. The identification procedure must be composed so that all fillers generally fit the eyewitness’ description of the suspect, and, in the case of a photo lineup, the photograph of the suspect should, if practicable, resemble his or her appearance at the time of the offense and not unduly stand out;
   6. When conducting a photo lineup, writings or information about any previous arrest of the suspect cannot be visible to the eyewitness;
   7. Only one suspect shall be included in any identification procedure;
   8. All eyewitnesses must be separated when viewing a line up;
   9. Nothing shall be said to the eyewitness that might influence his or her selection of the person suspected as the perpetrator;
   10. An electronic recording shall be made that includes both audio and visual representations of the identification, when feasible, otherwise, an audio recording shall be used; and,
   11. If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
       1. The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification and record in writing what he or she says;
       2. Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level and documenting the exact words of the eyewitness; and,
       3. The officer shall not validate or invalidate the eyewitness' identification.
3. Provides that this bill does not affect policies for in field show up procedures.
4. Defines the following terms:
   1. ''Blind administration'' means ''the administrator of an eyewitness identification procedure does not know the identity of the suspect.''
   2. ''Blinded administration'' means ''the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification procedure through the use of either of the following:''
      1. ''An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed'';
      2. ''The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is completed;'' or,
      3. Any other procedure that achieves neutral administration and prevents the lineup administrator from knowing where the suspect, or his or her photo, has been positioned.
   3. ''Eyewitness'' means ''a person whose identification of another person may be relevant in a criminal investigation.''
   4. "Field show up" means "a procedure in which a suspect is detained shortly after the commission of a crime and who, based on his or her appearance, distance from the crime scene, or other circumstantial evidence, is suspected of having just committed a crime. In these situations, the victim or eyewitness is brought to the scene of the detention and is asked if the detainee was the perpetrator."
   5. ''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.''
   6. ''Identification procedure'' means ''either a photo lineup or a live lineup.''
   7. ''Investigator'' means ''the person conducting the identification procedure.''
   8. ''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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.''
   9. ''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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.''
5. Contains legislative findings and declarations about the importance of valid eyewitness identification.

EXISTING LAW:

1. Provides that evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him or her while testifying and the following conditions are met:
   1. The statement is an identification of a party or another as a person who participated in a crime or other occurrence;
   2. The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and,
   3. The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.
2. Provides that the testimony of a witness concerning a particular matter is inadmissible unless he or she has personal knowledge of the matter, except to the extent that a person is giving opinion testimony as an expert witness.
3. States that, except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his or her testimony at the hearing, including but not limited to any of the following:
   1. His or her demeanor while testifying and the manner in which he or she testifies;
   2. The character of his or her testimony;
   3. The extent of his or her capacity to perceive, to recollect, or to communicate any matter about which he testifies;
   4. The extent of his or her opportunity to perceive any matter about which he or she testifies;
   5. His or her character for honesty or veracity or their opposites;
   6. The existence or nonexistence of a bias, interest, or other motive;
   7. A statement previously made by him or her that is consistent with his or her testimony at the hearing;
   8. A statement made by him or her that is inconsistent with any part of his or her testimony at the hearing;
   9. The existence or nonexistence of any fact testified to by him or her;
   10. His or her attitude toward the action in which he testifies or toward the giving of testimony; and,
   11. His or her admission of untruthfulness.
4. Provides 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:
   1. Related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
   2. 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.
5. Holds that a suggestive pretrial photo spread procedures may taint in-court identifications sufficient to deny the accused due process of law.
6. Holds that since it is the likelihood of misidentification that violates a defendant's right to due process, even a suggestive identification procedure does not violate due process so long as the identification possesses sufficient reliability.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown significant onetime costs, likely in the hundreds of thousands of dollars, for state entities with law enforcement responsibilities to promulgate regulations and train staff.
2. Unknown costs, likely totaling the hundreds of thousands of dollars annually, for state entities with law enforcement responsibilities to handle an increase in workload related to more lengthy and involved lineups, in some cases requiring additional staff.
3. Unknown significant, potentially reimbursable mandated local costs, potentially in the hundreds of thousands of dollars to low millions of dollars annually, for local law enforcement agencies. These costs include onetime costs to adopt line up procedures and train staff and potential ongoing costs to the extent additional staff are needed to implement lineup best practices.

COMMENTS: According to the author, ''Compliance with best practices improves the reliability of valid eyewitness identification. Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California eyewitness misidentification contributed to 66 wrongful convictions, including 12 out of the 13 DNA-based exonerations. Wrongful convictions involving eyewitness misidentification threatens public safety because when an innocent person is convicted the real perpetrator remains undetected and could harm others. The actual culprits in California’s DNA exoneration cases went on to be convicted of nine additional violent crimes including six murders and two rapes.

''There is currently no statewide standard requiring law enforcement to use best practices. Although law enforcement agencies in San Francisco, Alameda, Contra Costa, and Santa Clara Counties are amongst some of the California jurisdictions that follow some of the recommended procedures.

''Nationally, 19 states have adopted state requirements for eyewitness identification procedures including Georgia, Nebraska, North Carolina, Ohio, Texas, and West Virginia. These evidence-based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of the Sciences, the U.S. Department of Justice, the American Bar Association, and the International Association of Chiefs of Police.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0004097

Date of Hearing: June 27, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 923

Author:(Wiener) – As Amended Ver:May 25, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires law enforcement agencies and prosecutors to adopt regulations to implement best practices for conducting photo and live lineups with eye witnesses.

FISCAL EFFECT:

1. Unknown significant costs, likely totaling millions of dollars annually, for state entities with law enforcement responsibilities to handle onetime workload, such as promulgating regulations and training staff, as well as ongoing workload related to more lengthy and involved lineups, in some cases requiring additional staff. For example, the Department of Insurance reports costs of $420,000 in 2018-19, $850,000 in 2019-20, and $600,000 in 2020-21 and ongoing.
2. Unknown significant, potentially reimbursable mandated local costs, potentially in the millions of dollars annually, for local law enforcement agencies. These costs include onetime costs to adopt line up procedures and train staff and potential ongoing costs to the extent additional staff are needed to implement lineup best practices.

COMMENTS:

1. Background. Law enforcement agencies generally use two different kinds of lineup procedures for the purpose of suspect identification—a photo lineup or a live lineup. A photo lineup is the process of showing a group of photographs to an eyewitness for the purpose of identifying or eliminating a suspect. A live lineup, sometimes called a physical lineup, involves the live presentation of individuals, before an eyewitness, for the purpose of identifying or eliminating suspects. Eyewitness identification is the sort of testimony that a jury finds highly persuasive, and yet, by objective standards, it is not very reliable. Studies by National Academy of Sciences, the Innocence Project, and many others reveal that many defendants freed by DNA evidence had been convicted based on eyewitness testimony of witnesses who are sincere in their belief that the identified person is the perpetrator, but who were mistaken.
2. Purpose. This bill requires law enforcement agencies to implement certain best practices for photo and live lineups to reduce the factors that can result in erroneous identification of a suspect. According to the author:

Compliance with best practices improves the reliability of valid eyewitness identification. Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California eyewitness misidentification contributed to 66 wrongful convictions, including 12 out of the 13 DNA-based exonerations.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: June 12, 2018

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 923

Author:(Wiener) – As Amended Ver:May 25, 2018

SUMMARY: Requires law enforcement agencies and prosecutors to adopt regulations for conducting photo and live lineups with eye witnesses. Specifically, this bill:

1. Provides that all law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses.
2. Requires that the regulations be developed to ensure reliability and accurate suspect identifications, and comply with the following minimum requirements:
   
   1. The eyewitness must complete a standardized form describing the perpetrator of the offense before conducting the identification procedure, and as close in time to the incident as possible;
      
   2. The person conducting the identification procedure must use blind administration or blinded administration during the identification procedure;
      
   3. If blind administration or blinded administration is not used, the investigator shall state in writing the reason that the presentation of the lineup was not so conducted;
      
   4. Before an identification procedure, an eyewitness must be told that the perpetrator may not be among the persons in the lineup, that the eyewitness should not feel compelled to make an identification, and, that neither an identification nor the failure to make one will not end the investigation;
      
   5. The identification procedure must be composed so that all fillers generally fit the description of the suspect, and, in the case of a photo lineup, the photograph of the suspect should resemble his or her appearance at the time of the offense and not unduly stand out;
      
   6. When conducting a photo lineup, writings or information about any previous arrest of the suspect cannot be visible to the eyewitness;
      
   7. Only one suspect shall be included in any identification procedure;
      
   8. All witnesses must be separated when viewing a line up;
      
   9. Nothing shall be said to the eyewitness that might influence his or her selection of the person suspected as the perpetrator;
      
   10. An electronic recording shall be made that includes both audio and visual representations of the identification; and,
       
   11. If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
       1. The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification;
          
       2. Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level and documenting the exact words of the eyewitness; and,
          
       3. The officer shall not at any time, validate the eyewitness’ identification.
          
3. Defines the following terms:
   
   1. “Blind administration” means “the administrator of an eyewitness identification procedure does not know the identity of the suspect.”
      
   2. “Blinded administration” means “the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification procedure through the use of either of the following:”
      
      1. “An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed”; or,
         
      2. “The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is completed.”
         
   3. “Eyewitness” means “a person whose identification of another person may be relevant in a criminal investigation.”
      
   4. “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.”
      
   5. “Identification procedure” means “either a photo lineup or a live lineup.”
      
   6. “Investigator” means “the person conducting the identification procedure.”
      
   7. “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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.”
      
   8. “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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.”
      
4. Contains legislative findings and declarations about the importance of valid eyewitness identification.

EXISTING LAW:

1. Provides that evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him or her while testifying and the following conditions are met:
   
   1. The statement is an identification of a party or another as a person who participated in a crime or other occurrence;
      
   2. The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and,
      
   3. The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time. (Evid. Code, § 1238.)
      
2. Provides that the testimony of a witness concerning a particular matter is inadmissible unless he or she has personal knowledge of the matter, except to the extent that a person is giving opinion testimony as an expert witness. (Evid. Code, § 702, subd. (a).)
   
3. States that, except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his or her testimony at the hearing, including but not limited to any of the following:
   
   1. His or her demeanor while testifying and the manner in which he or she testifies;
      
   2. The character of his or her testimony;
      
   3. The extent of his or her capacity to perceive, to recollect, or to communicate any matter about which he testifies;
      
   4. The extent of his or her opportunity to perceive any matter about which he or she testifies;
      
   5. His or her character for honesty or veracity or their opposites;
      
   6. The existence or nonexistence of a bias, interest, or other motive;
      
   7. A statement previously made by him or her that is consistent with his or her testimony at the hearing;
      
   8. A statement made by him or her that is inconsistent with any part of his or her testimony at the hearing;
   9. The existence or nonexistence of any fact testified to by him or her;
      
   10. His or her attitude toward the action in which he testifies or toward the giving of testimony; and,
       
   11. His or her admission of untruthfulness. (Evid. Code, § 780.)
       
4. Provides 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:
   
   1. Related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
      
   2. 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.)
      
5. Holds that a suggestive pretrial photo spread procedures may taint in-court identifications sufficient to deny the accused due process of law. (Simmons vs. United States (1968) 390 U.S. 377, 384.)
   
6. Holds that since it is the likelihood of misidentification that violates a defendant's right to due process, even a suggestive identification procedure does not violate due process so long as the identification possesses sufficient reliability. (Neil vs. Biggers (1972) 409 U.S. 188, 196.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Compliance with best practices improves the reliability of valid eyewitness identification. Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California eyewitness misidentification contributed to 66 wrongful convictions, including 12 out of the 13 DNA-based exonerations. Wrongful convictions involving eyewitness misidentification threatens public safety because when an innocent person is convicted the real perpetrator remains undetected and could harm others. The actual culprits in California’s DNA exoneration cases went on to be convicted of 9 additional violent crimes including 6 murders and 2 rapes.
   
   “There is currently no statewide standard requiring law enforcement to use best practices. Although law enforcement agencies in San Francisco, Alameda, Contra Costa, and Santa Clara Counties are amongst some of the California jurisdictions that follow some of the recommended procedures.
   
   “Nationally, 19 states have adopted state requirements for eyewitness identification procedures including Georgia, Nebraska, North Carolina, Ohio, Texas, and West Virginia. These evidence-based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of the Sciences, the U.S. Department of Justice, the American Bar Association, and the International Association of Chiefs of Police.”
   
2. Eyewitness Identification Procedures: Law enforcement agencies generally use two different kinds of lineup procedures for the purpose of suspect identification: a photo lineup or a live lineup. A photo lineup is the process of showing a group of photographs to an eyewitness for the purpose of identifying or eliminating a suspect. A live lineup, sometimes called a physical lineup, involves the live presentation of individuals, before an eyewitness, for the purpose of identifying or eliminating suspects. A third identification procedure that is sometimes used is the “showup” in which the suspect is presented singly to the crime victim. Law enforcement typically uses this procedure when a suspect is located shortly after the crime and in close proximity to the crime scene.
   
3. Issues Arising From Eyewitness Identification Procedures: Eyewitness identification is the sort of testimony that a jury finds highly persuasive, and yet, by objective standards, is not very reliable. Studies by National Academy of Sciences, the Innocence Project, and many others reveal that, by far, defendants freed by DNA evidence had been convicted based on eyewitness testimony of witnesses who are sincere in their belief that the identified person is the perpetrator, but who are mistaken. (See e.g., Identifying the Culprit: Assessing Eyewitness Identification, National Academy of Sciences, 2014 < https://www.innocenceproject.org/wp-content/uploads/2016/02/NAS-Report-ID.pdf >; Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification, Innocence Project, 2009 <https://www.innocenceproject.org/reevaluating-lineups-why-witnesses-make-mistakes-and-how-to-reduce-the-chance-of-a-misidentification/>.)
   
   While mistaken identification obviously has terrible consequences for persons wrongly accused of crimes, it also severely impacts crime victims, and society at large. A crime victim who sincerely, but wrongly, identifies a perpetrator must live with the guilt that he or she was partly responsible for the defendant’s incarceration. The crime victim may also have to again live in fear that the actual perpetrator might still be at large. And some consequences of mistaken identification that effect society at large include the erosion of public confidence in the criminal justice system and the potential threat to public safety when dangerous perpetrators remain at large.
   
   There are many factors that can induce misidentification, some of which are environmental and others which are systemic. Environmental factors cannot be controlled. These factors might include the stress of the events based on the seriousness of the crime, lighting conditions, whether a weapon was used, the length of time the witness saw the perpetrator, whether the identification was cross-racial, and the passage of time. (See e.g. Mistaken Identification: The Eyewitness, Psychology, and the Law, Cutler and Penrod, Cambridge University Press, 1995, pp. 101-105, <https://www.ncjrs.gov/pdffiles1/Digitization/159775NCJRS.pdf >; see also Identifying the Culprit, supra, p. 72.)
   
   In contrast, systemic factors are those factors that are under the control of the criminal justice system, namely police investigators and prosecutors. These include factors such as lineup procedures (e.g., simultaneous vs. sequential lineups, blinded vs. non-blinded lineup administration); instructions given to witnesses before lineup identifications; and feedback to witnesses during or after the identification process.
   
   This bill addresses some of the common systemic factors that can lead to misidentification by requiring law enforcement to adopt specified best practices in their identification procedures.
   
4. Recommendations: In October 2014, the National Academy of Sciences released the first ever comprehensive report on the science of eyewitness identification practices in the United States. (Identifying the Culprit: Assessing Eyewitness Identification, National Academy of Sciences, 2014, < https://www.innocenceproject.org/wp-content/uploads/2016/02/NAS-Report-ID.pdf >.) The report, recommended that law enforcement adopt the following practices:
   

• Train all law enforcement officers in eyewitness identification.

• Conduct lineups and photo arrays blindly.

• Establish standardized witness instructions.

• Immediately ask the witness about his or her level of confidence in the identification.

• Videotape the entire eyewitness identification procedure.

This bill adopts three of those five recommended practices, namely that the identification procedures are conducted blindly; that the witness is asked about his or her level of confidence in the identification; and that the procedure is recorded.

Another organization which has made recommendations on identification procedures is the Commission on the Fair Administration of Justice, which was formed in 2004 to study and review the administration of criminal justice in California. The Commission released a report on the subject of eyewitness identification procedures. (See https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1000&context=ncippubs ) Ten of the twelve recommendations were adopted unanimously with dissent by three members to the two remaining recommendations. The Commission’s recommendations were as follows:

• 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.

• 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.)

• 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 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 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.)

• 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.

Again, this bill adopts several of those recommendations, including: blind administration; admonishments to the witness that the perpetrator may not be included and that failure to identify will not end the investigation; separating witnesses during the identification process; using fillers which resemble the perpetrator; recording the identification procedure; ascertaining the witness’s level of certainty; and not giving feedback about the accuracy of the identification.

1. Reform Efforts in Other Jurisdictions: Numerous states have passed some form of eyewitness identification reform legislation, among these are: West Virginia; North Carolina; Texas, Ohio, Nevada, Nebraska, and, most recently Florida and Louisiana. (See e.g, https://www.innocenceproject.org/nebraska-achieve-eyewitness-identification-reform/ (Nebraska); https://www.flsenate.gov/Session/Bill/2017/0312/?Tab=BillHistory (Florida); and https://www.nola.com/crime/index.ssf/2018/05/governor_signs_bill_aimed_at_p.html (Louisiana).)
   
   Additionally, in January 2017, the US Department of Justice updated their recommendations on eyewitness identification procedures for conducting photo lineups and included many of provisions of this bill including: using a blind or blinded procedure; making sure the fillers meet the basic description of the perpetrator; and taking a confidence statement as soon as the identification is made. (See https://www.justice.gov/opa/pr/justice-department-announces-department-wide-procedures-eyewitness-identification.)
   
2. Applicable Law Regarding Suggestive Identification Procedures: The right to due process, under the Fourteenth Amendment protects defendants from suggestive eyewitness identification procedures that create a substantial likelihood of irreparable mistaken identification. (See Manson v. Brathwaite (1977) 432 U.S. 98, 113-114; Neil v. Biggers (1972) 409 U.S. 188.) In reviewing a due process challenge to suggestive identification procedures, courts use a three-part inquiry. First, the court must determine if the pretrial identification procedure was impermissibly suggestive. (United States v. Love (9th Cir. 1984) 746 F.2d 477, 478.) Second, if the identification procedure was unduly suggestive, the court must determine whether it was sufficiently reliable such that it does not implicate the defendant's due process rights. (United States v. Bagley, supra, 772 F.2d at p. 492.) Third, even if the pretrial identification procedure was suggestive and the identification was unreliable, the reviewing court must examine the trial court's failure to exclude the identification for harmless error. (Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098, 1114.)
   
   An identification procedure is suggestive when it emphasizes the focus upon a single individual thereby indicating the police believe a particular person is responsible for the crime, or if it leads the witness to select that person on the basis of factors other than independent recollection. (See People v. Hunt (1977) 19 Cal.3^rd 888, 894; People v. Sluts (1968) 259 Cal.App.2d 238, 246; see also United States v. Montgomery (9th Cir. 1998) 150 F.3d 983, 992.) To determine if an identification procedure was unduly suggestive, the court must examine the totality of the surrounding circumstances. United States v. Bagley (9th Cir. 1985) 772 F.2d 482, 492.)
   
   As noted above, this bill addresses some of the systematic variables contributing to suggestive identifications such as the way lineups are conducted and how police interact with an identifying witness.
   
3. Argument in Support: According to the California Innocence Coalition, three of the co-sponsors of this bill, “Since 1989, there have been 186 men and women wrongfully convicted in our state and in over a third of these cases, mistaken eyewitness identification was the basis for conviction. Eyewitness misidentification is not unique to California; it is the cause of nearly 70% of convictions later overturned by DNA evidence nationwide. For the past three decades, the problem has been studied by stakeholders in the criminal justice system and social scientists resulting in recommendations of best practices to reduce the risk of rightful identifications being discredited in a court of law and of wrongful identifications resulting in the loss of freedom for innocent individuals.
   
   “SB 923 would put California in line with 19 other states that have already adopted best practices state-wide to improve eyewitness identification procedures. The bill mandates consistency between all law enforcement agencies in our state to follow these practices: 1) that the administrator of the eyewitness procedure is blind or blinded to the identity of the suspect to ensure a witness is not inadvertently cued to select that person; 2) that appropriate fillers are used to make sure the suspect does not stand out in any way; 3) that the eyewitness is properly admonished prior to the procedure informing them the perpetrator may or may not be in the photo array; 4) that the eyewitness provides a statement of confidence following their identification, and 5) that the entire procedure is video recorded.
   
   “Eyewitness identification is a critical tool for solving crimes, but when the identification is wrong it can be devastating not just to the wrongfully convicted, but to the safety of our communities. The actual culprits in California’s DNA exoneration cases went on to be convicted of 9 additional violent crimes including 6 murders and 2 rapes. Additionally, it has cost California taxpayers $31 million to prosecute, incarcerate and compensate the wrongfully convicted.
   
   “Law enforcement’s adoption and implementation of eyewitness identification best practices serves all sides of justice by increasing the likelihood that the true perpetrator is rightfully convicted and by reducing the risk that an innocent person is wrongfully convicted.”
   
4. Argument in Opposition: According to the Los Angeles Police Protective League, “We believe that the protocols for efficacious eye witness identification should be determined collaboratively at the local level. The unintended consequences of imposing an eye witness protocol with the benefit of daily experience and interaction among the enforcement and prosecutorial branches can actually result in dysfunctional outcomes. For example, if it has been fostered, it is critical to allow for law enforcement officers who have developed trust with their communities or with victims of crimes to be able to conduct eyewitness identifications. Often times, the victims or witnesses to crimes will be unwilling to freely offer information to anyone they do not know, trust or feel comfortable with. It is common for these witnesses and victims to request to speak with specific officers or even refuse to speak to officers they do not know or trust. This measure ignores that reality.
   
   “The same can be applied to the mandate to videotape the procedure. Often times, when the camera turns on, the talking stops. Witnesses who come forward to make identifications are often terrified of repercussions for their interaction with law enforcement, and a video camera bolsters that fear.
   
   “In addition to serious issues about the soundness of state-imposed fixed protocol, the added staffing requirements of SB 923 are significant. The requirement of conducting blinded administration of procedures will place an unrealistic burden on law enforcement agencies.
   
   “We all share the goal of assuring the reliability of eyewitness identification; we believe the evaluation of the mandated protocols embodied in SB 923 suggests that it would create false identification outcomes that do not currently exist. Further, we believe that the proposed changes to law will result in less information that will lead to fewer solved crimes and decreased justice in our communities.”
   
5. Prior Legislation:
   
   1. AB 308 (Ammiano), of the 2011-2012 Legislative Session, would have required the Department of Justice (DOJ) and the Commission on Peace Officers Standards and Training (POST), in consultation with others, to 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.
      
   2. SB 1591 (Ridley-Thomas), of the 2007-2008 Legislative Session, would also have required that the DOJ and others develop guidelines for policies and procedures in the collection and handling of eye witness evidence in criminal investigations. SB 1591 was held on the Senate Appropriations Committee's Suspense File.
      
   3. SB 756 (Ridley-Thomas), of the 2007-2008 Legislative Session, would have required that the DOJ and others develop guidelines for policies and procedures in the collection and handling of eye witness evidence in criminal investigations. SB 756 was vetoed.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California (Co-Sponsor)
California Innocence Project (Co-Sponsor)
Loyola Law School Project for the Innocent (Co-Sponsor)
Northern California Innocence Project (Co-Sponsor)
California Attorneys for Criminal Justice
California Public Defenders Association
Conference of California Bar Associations
Legal Services for Prisoners with Children
Root and Rebound
San Francisco Public Defender’s Office

Opposition

Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
California Police Chiefs Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 923

Author:

Amended:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 4/10/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Stone

SENATE APPROPRIATIONS COMMITTEE: 5-1, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Nielsen

NO VOTE RECORDED: Bates

SUBJECT:

SOURCE: ACLU California

California Innocence Project

Loyola Law School Project for the Innocent

Northern California Innocence Project

DIGEST:

This bill requires all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses.

ANALYSIS: Existing law sets forth various aspects of criminal procedure.

This bill:

1. Provides that all law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses.
2. Provides that the regulations shall be developed to ensure reliability and accuracy suspect identifications.
3. Provides that in order to ensure reliability and accuracy, the regulations created pursuant to this bill shall comply with the following requirements at a minimum:
   1. Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall complete a standardized form describing the perpetrator of the offense.
   2. The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.
   3. The investigator shall state in writing the reason that the presentation of the lineup was not conducted using blind administration or blinded administration.
   4. An eyewitness shall be instructed of the following, prior to any identification procedure:
      1. The perpetrator may not be among the persons in the identification procedure.
      2. The eyewitness should not feel compelled to make an identification.
      3. An identification or failure to make an identification will not end the investigation.
   5. An identification procedure shall be composed so that all 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 should resemble his or her appearance at the time of the offense and does not unduly stand out.
   6. In a photo lineup, no writings or information concerning any previous arrest of the person suspected as the perpetrator shall be visible to the eyewitness.
   7. Only one suspected perpetrator shall be included in any identification procedure.
   8. All witnesses shall be separated when viewing an identification procedure.
   9. Nothing shall be said to the eyewitness that might influence the eyewitness's selection of the person suspected as the perpetrator.
   10. If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
       1. The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification.
       2. Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level and documenting the exact words of the eyewitness.
       3. The officer shall not at any time, validate the eyewitness’ identification.
   11. An electronic recording shall be made that includes both audio and visual representations of the identification.
4. Defines specified terms as follows:
   1. Blind: the administrator of an eyewitness identification procedure does not know the identity of the suspect.
   2. Blinded administration: the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification through either of the following:
      1. An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed.
      2. The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is complete.
   3. Eyewitness: a person whose identification of another person may be relevant in a criminal investigation.
   4. Photo lineup: 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.
   5. Live lineup: 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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
   6. Investigator: the person conducting the live or photo lineup.
   7. Identification procedure: either a photo lineup or a live lineup.
   8. Filler: either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.
   9. Photo lineup: 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, are displayed to an eyewitness for the purpose of determining whether the eyewitnesses is able to identify the suspect as the perpetrator.
5. Makes a number of uncodified findings and declarations.

Background

1. Identification Procedures

This bill requires all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses. The bill sets forth minimum requirements for these policies

According to the California Innocence Projects:

SB 923 would put California in line with 19 other states that have already adopted best practices state-wide to improve eyewitness identification procedures. The bill mandates consistency between all law enforcement agencies in our state to follow these practices: 1) that the administrator of the eyewitness procedure is blind or blinded to the identity of the suspect to ensure a witness is not inadvertently cued to select that person; 2) that appropriate fillers are used to make sure the suspect does not stand out in any way; 3) that the eyewitness is properly admonished prior to the procedure informing them the perpetrator may or may not be in the photo array; 4) that the eyewitness provides a statement of confidence following their identification, and 5) that the entire procedure is video recorded.

1. Recommendations of the Commission on the Fair Administration of Justice

The Commission on the Fair Administration of Justice was created by SR 44 (Burton, 2004, Adopted by the Senate). 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.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

1. State law enforcement: Costs to state law enforcement agencies vary, ranging from significant to minor and absorbable per law enforcement agency. Higher costs are anticipated initially to purchase recording equipment or computer programs and to train staff, with moderate to absorbable one-time costs per agency to adopt written regulations. (General Fund, various special funds)
2. By way of example, the Department of Insurance would need to promulgate regulations for live lineups, as it currently uses only photo lineups. The Department of Justice estimates costs of around $71,000 annually to purchase, maintain, and upgrade the recording equipment needed to comply with this bill. This measure would require the Department of Fish and Wildlife to promulgate new regulations, a cost of about $25,000 to $35,000. The departments of Motor Vehicles and of State Hospitals, on the other hand, anticipate that costs to conform practices will be minor and absorbable.
3. Local law enforcement: Unknown potentially-reimbursable one-time and ongoing costs, ranging from significant to minor and absorbable costs for increased workload, dependent on each agency’s current identification procedures. Higher costs anticipated initially in training relevant personnel in new procedures once adopted. Likely-reimbursable moderate to absorbable one-time costs per agency to adopt written photo and live lineup procedure regulations. (General Fund/local fund) Local costs to comply with SB 923 would be subject to reimbursement from the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. Considering that there are over 500 local law enforcement agencies across the state, aggregate costs to implement this measure could be significant.

SUPPORT: (Verified 5/25/18)

ACLU California (co-source)

California Innocence Project (co-source)

Loyola Law School Project for the Innocent (co-source)

Northern California Innocence Project (co-source)

California Public Defenders Association

Conference of California Bar Associations

Legal Services for Prisoners with Children

Root and Rebound

San Francisco Public Defender

OPPOSITION: (Verified 5/25/18)

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California Narcotic Officers Association

California Police Chiefs Association

Los Angeles County Professional Peace Officers Association

ARGUMENTS IN SUPPORT: Root and Rebound supports this bill stating:

Since 1989, 186 men and women in our state have been found to have been wrongfully convicted, and in over a third of these cases, mistaken eyewitness identification was the basis for conviction. Mistaken identification by eyewitnesses is a problem throughout the U.S., providing the basis of nearly seventy percent of convictions later overturned by DNA nationwide. For the past three decades, the problem has been studied by stakeholders in the criminal justice system and social scientists. The result has been recommendations of evidence-proven practices that reduce the risk of wrongful identifications and wrongful convictions based on those identifications, while making it less likely that rightful identifications will be successfully challenged in court.

ARGUMENTS IN OPPOSITION: The California Police Chiefs Association opposes this bill stating:

In a study conducted by the University of Aberdeen, Professors Amina Memon and Fiona Gabbert found that “sequential testing lowers the choosing rates of both younger and older adults such that they are more likely to miss the target when present.” Professors Memon and Gabbert went on to say there was a “tendency for sequential testing to increase false identifications among older adults.”

Furthermore, the study Improving Eyewitness Identifications: Hennepin County’s Blind Sequential Lineup Pilot Project, reported that Hennepin County investigators “perceived no drop in number of quality of achieved suspect identifications.”

The added requirements from SB 923 would require additional staff, which may not be feasible for some departments. Specifically, if they are required to conduct blind administration of procedures tit would require additional officers to conduct parts of the investigation which could prove to be difficult for our smaller agencies. The bill would also require audio and visual recordings of the reactions of the victims when conducting the lineups. The cost of implementing and maintain the necessary equipment would put a strain on budgets which could potentially affect day to day operations.

Prepared by: Mary Kennedy / PUB. S. /

5/30/18 9:11:36

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 923 (Wiener) - Criminal investigations: eyewitness identification

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Bill Summary:

SB 923 would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo and live lineups.

Fiscal Impact:

• State law enforcement: Costs to state law enforcement agencies vary, ranging from significant to minor and absorbable per law enforcement agency. Higher costs are anticipated initially to purchase recording equipment or computer programs and to train staff, with moderate to absorbable one-time costs per agency to adopt written regulations. (General Fund, various special funds)

By way of example, the Department of Insurance would need to promulgate regulations for live lineups, as it currently uses only photo lineups. The Department of Justice estimates costs of around $71,000 annually to purchase, maintain, and upgrade the recording equipment needed to comply with this bill. This measure would require the Department of Fish and Wildlife to promulgate new regulations, a cost of about $25,000 to $35,000. The departments of Motor Vehicles and of State Hospitals, on the other hand, anticipate that costs to conform practices will be minor and absorbable.

• Local law enforcement: Unknown potentially-reimbursable one-time and ongoing costs, ranging from significant to minor and absorbable costs for increased workload, dependent on each agency’s current identification procedures. Higher costs anticipated initially in training relevant personnel in new procedures once adopted. Likely-reimbursable moderate to absorbable one-time costs per agency to adopt written photo and live lineup procedure regulations. (General Fund/local fund) Local costs to comply with SB 923 would be subject to reimbursement from the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. Considering that there are over 500 local law enforcement agencies across the state, aggregate costs to implement this measure could be significant.

Author Amendments:

Require the investigator to document why a lineup presentation was not conducted using blind or blinded administration, delete specificity of how audio and visual recording must be conducted, and provide that blinded administration may be done through an automated computer program or the folder shuffle method.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 923 (Wiener) - Criminal investigations: eyewitness identification

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 923 would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo and live lineups.

Fiscal Impact:

• State law enforcement: Costs to state law enforcement agencies vary, ranging from hundreds of thousands of dollars in ongoing personnel costs to minor and absorbable per law enforcement agency. Higher costs are anticipated initially to purchase recording equipment and train staff, with moderate to absorbable one-time costs per agency to adopt written regulations. (General Fund, various special funds)

By way of example, the Department of Insurance anticipates costs of approximately $420,000 in the 2018-19 fiscal year, $850,000 in the 2019-20 fiscal year, and $600,000 ongoing thereafter to hire 5.0 additional investigators additional investigators to cover the blind lineups across seven regional offices for the Investigation Division and promulgate regulations for live lineups, as it currently uses only photo lineups. The Department of Justice estimates costs of around $71,000 annually to purchase, maintain, and upgrade the recording equipment needed to comply with this bill. This measure would require the Department of Fish and Wildlife to promulgate new regulations, a cost of about $25,000 to $35,000. The departments of Motor Vehicles and of State Hospitals, on the other hand, anticipate that costs to conform practices will be minor and absorbable.

• Local law enforcement: Significant potentially-reimbursable one-time and ongoing local costs ranging from in the millions of dollars to minor and absorbable costs for increased workload, dependent on each agency’s current identification procedures. Higher costs anticipated initially in training relevant personnel in new procedures once adopted. Likely-reimbursable moderate to absorbable one-time costs per agency to adopt written photo and live lineup procedure regulations. (General Fund/local fund)

Some police departments estimate costs in the range of $10,000 to $27,000 annually for increased personnel time and the purchase of equipment and digital storage space to comply with this measure. One department estimates costs at closer to $67,000 initially and $55,000 ongoing for increased staff and equipment demands. The Los Angeles County Sheriff’s Department, which arguably has one of the biggest workload with respect to local law enforcement agencies, estimates rough costs of $500,000 annually at a minimum. Part of this cost is in anticipation of the staffing and overtime expenses incurred for detectives being subpoenaed to testify in court for cases in which they administered a blind or blinded lineup. These local costs to comply with SB 923 would be subject to reimbursement from the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. Considering that there are over 500 local law enforcement agencies across the state, costs to implement this measure could reach into the millions of dollars in the aggregate.

Background:

In 2004, the Senate established the California Commission on the Fair Administration of Justice. The bipartisan commission was tasked to study and review the administration of criminal justice in California, determine the extent to which that process has failed in the past, examine ways of providing safeguards and making improvements in the way the criminal justice system functions, and make recommendations and proposals designed to further ensure that the application and administration of criminal justice is just, fair, and accurate.

The commission held public hearings and released reports and recommendations, the first of which was on April 13, 2006 on the subject of eyewitness identification procedures. In reaching its recommendations, the commission looked at reports from other bodies, available research, guidelines adopted by the U.S. Department of Justice, practices of other states, and the practice of Santa Clara County, which had adopted a double-blind lineup protocol in 2002. Among the primary recommendations by the commission was the use of double-blind identification procedures whenever practicable so that the person conducting a photo or live lineup is not aware of the identity of the actual suspect. The commission recommended that other double-blind alternatives be considered if a double-blind administration of a lineup is not practicable.

Proposed Law:

This bill would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses to ensure reliable and accurate suspect identifications. It would require the regulations to comply with specified requirements, in part, including the following:

• Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness provide the description of the perpetrator of the offense.
• The investigator conducting the lineup must use blind administration or blinded administration, as those terms are defined, during the identification procedure.
• The investigator must state in writing the reason why an administration of a lineup was not blind or blinded, if applicable.
• There must be an electronic recording, including both audio and visual representations, of the identification procedure that includes all person s who participated in the procedure, the reactions of the witnesses, and the statements of the investigators.

Additionally, SB 923 would define specified terms and make legislative findings and declarations.

Related Legislation:

AB 308 (Ammiano, 2011) would have required the Department of Justice, in consultation with the Commission on Peace Officer Standards and Training and other specified entities, to develop guidelines for policies and procedures with respect to the collection and handling of eyewitness evidence in criminal investigations by all law enforcement agencies. AB 308 was held on the Suspense File of this Committee.

SB 1591 (Ridley-Thomas, 2008) was similar to AB 308 (Ammiano, 2011) and was held on the Suspense File of this Committee. SB 756 (Ridley-Thomas, 2007) also was similar to AB 308 and was vetoed by the governor with the following message:

I am returning Senate Bill 756 without my signature. While I support the efforts to improve reliability and accuracy of eyewitness identifications, this bill goes too far in attempting to address the problems of unreliable eyewitness identifications.

This bill would mandate that the Department of Justice (DOJ) and the Commission on Peace Officer Standards and Training (POST) consider questionable recommendations from the California Commission on the Fair Administration of Justice and require all California law enforcement agencies to adopt whichever guidelines DOJ and POST choose.

Law enforcement agencies must have the authority to develop investigative policies and procedures that they can mold to their own unique local conditions and logistical circumstances rather than be restricted to methods created that may make sense from a broad statewide perspective.

Staff Comments:

Staff notes that it is unclear what consequences would result for the failure of a law enforcement agency or prosecutor’s office to conduct a lineup according to the regulations that are required to be adopted by this bill (e.g., would the lineup identification be rendered inadmissible). The author may wish to clarify this ambiguity.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 923 Hearing Date: April 10, 2018

Subject: Criminal Investigations: Eyewitness Identification

HISTORY

Source: ACLU California

California Innocence Project

Loyola Law School Project for the Innocent

Northern California Innocence Project

Prior Legislation: AB 308 (Ammiano) Held Sen Appropriations 2011

SB 1591 (Ridley-Thomas) Held Senate Appropriations 2008

SB 756 (Ridley-Thomas) Vetoed 2007

SB 1544 (Migden) Vetoed 2006

Support: California Public Defenders Association; Conference of California Bar Association; Legal Services for Prisoners with Children; Root and Rebound;

San Francisco Public Defender

Opposition: California Police Chiefs Association

PURPOSE

The purpose of this bill is to require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses.

Existing law sets forth various aspects of criminal procedure.

This bill provides that all law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses.

This bill provides that the regulations shall be developed to ensure reliability and accuracy suspect identifications.

This bill provides that in order to ensure reliability and accuracy, the regulations created pursuant to this bill shall comply with the following requirements at a minimum:

• Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall complete a standardized form describing the perpetrator of the offense.
• The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.
• The investigator shall state in writing the reason that the presentation of the lineup was not made by a person who was not aware of which person in the identification procedure was suspected as the perpetrator.
• An eyewitness shall be instructed of the following, prior to any identification procedure:
  • The perpetrator may not be among the persons in the identification procedure.
  • The eyewitness should not feel compelled to make an identification.
  • An identification or failure to make an identification will not end the investigation.
• An identification procedure shall be composed so that all 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 should resemble his or her appearance at the time of the offense and does not unduly stand out.
• In a photo lineup, no writings or information concerning any previous arrest of the person suspected as the perpetrator shall be visible to the eyewitness.
• Only one suspected perpetrator shall be included in any identification procedure.
• All witnesses shall be separated when viewing an identification procedure.
• Nothing shall be said to the eyewitness that might influence the eyewitness's selection of the person suspected as the perpetrator.
• If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:
• The investigator shall immediately inquire as to the eyewitness' confidence level in the accuracy of the identification.
• Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level and documenting the exact words of the eyewitness.
• The officer shall not at any time, validate the eyewitness’
• An electronic recording shall be made that includes both audio and visual representations of the identification procedure, the reactions of the witnesses, and the statements of the investigator.

This bill defines specified terms as follows:

• Blind: the administrator of an eyewitness identification procedure does not know the identity of the suspect.
• Blinded: the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification procedure.
• Eyewitness: a person whose identification of another person may be relevant in a criminal investigation.
• Photo lineup: 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.
• Live lineup: 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, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
• Investigator: the person conducting the live or photo lineup.
• Identification procedure: either a photo lineup or a live lineup.
• Filler: either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.
• Photo lineup: 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, are displayed to an eyewitness for the purpose of determining whether the eyewitnesses is able to identify the suspect as the perpetrator.

This bill makes a number of uncodified findings and declarations.

COMMENTS

1. Need for This Bill

According to the author:

Compliance with best practices improves the reliability of valid eyewitness identification. Eyewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally. In California eyewitness misidentification contributed to 66 wrongful convictions, including 12 out of the 13 DNA-based exonerations. Wrongful convictions involving eyewitness misidentification threatens public safety because when an innocent person is convicted the real perpetrator remains undetected and could harm others. The actual culprits in California’s DNA exoneration cases went on to be convicted of 9 additional violent crimes including 6 murders and 2 rapes.

There is currently no statewide standard requiring law enforcement to use best practices. Although law enforcement agencies in San Francisco, Alameda, Contra Costa, and Santa Clara Counties are amongst some of the California jurisdictions that follow some of the recommended procedures. Nationally, 19 states have adopted state requirements for eyewitness identification procedures including Georgia, Nebraska, North Carolina, Ohio, Texas, and West Virginia. These evidence-based procedures have been endorsed by the California Commission on the Fair Administration of Justice, the National Academy of the Sciences, the U.S. Department of Justice, the American Bar Association, and the International Association of Chiefs of Police.

2. Identification Procedures

This bill will require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses. The bill sets forth minimum requirements for these policies

According to the Innocence Projects sponsors:

SB 923 would put California in line with 19 other states that have already adopted best practices state-wide to improve eyewitness identification procedures. The bill mandates consistency between all law enforcement agencies in our state to follow these practices: 1) that the administrator of the eyewitness procedure is blind or blinded to the identity of the suspect to ensure a witness is not inadvertently cued to select that person; 2) that appropriate fillers are used to make sure the suspect does not stand out in any way; 3) that the eyewitness is properly admonished prior to the procedure informing them the perpetrator may or may not be in the photo array; 4) that the eyewitness provides a statement of confidence following their identification, and 5) that the entire procedure is video recorded.

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.
• 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 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 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 called 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 science on eyewitness ID

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]

The Chief of Police of Norwood, Massachusetts police department in discussing why they changed their eyewitness ID policies when he was in Wellesley, MA noted in an article in December 2014 that “[i]n October [2014], the National Academy of Sciences (NAS) released the first ever comprehensive report on the science of eyewitness identification practices in the United States. The report, Identifying the Culprit, to which I had the privilege to contribute as a committee member, recommended that law enforcement adopt the following practices:

• train all law enforcement officers in eyewitness identification
• conduct lineups and photo arrays blindly
• establish standardized witness instructions
• immediately ask the witness about his or her level of confidence in the identification
• videotape the entire eyewitness identification procedure

The reasons for these reforms are articulated substantively in the report, but can be boiled down to the following explanations:

• The NAS stressed the importance of providing both recruit and refresher training to law enforcement on vision, memory, and the practices the police can employ to minimize contamination and enhance the accuracy of the identifications they obtain.
• Live and photo lineups should be conducted by a blind administrator. In the case of double-blind lineups, neither the administrator nor the witness knows the identity of the suspect. In instances where a smaller police agency lacks personnel to conduct a double-blind lineup, the NAS recommends a “blinded” procedure where the officer knows the identity of the suspect but performs what is known as a “folder shuffle” to prevent him or her from seeing which photo the eyewitness is viewing. With both methods, because the administrator is effectively “blinded,” he or she cannot unintentionally convey any gestures or clues which might prompt an eyewitness to make a selection.
• Law enforcement should develop standardized witness instructions informing the eyewitness that the perpetrator may or may not be in the lineup and that the investigation will continue regardless of whether a selection is made. This will reduce the chance of the eyewitness feeling pressure to make a selection out of fear that the investigation will not otherwise continue.
• After a selection is made, officers should immediately take down a verbatim confidence statement in which the eyewitness articulates how certain he or she is. This is important because an eyewitness’s confidence can become inflated between the time of an identification and a possible trial. Having the witness describe his or her level of confidence at the time an identification is made will provide juries with a useful tool for judging the true level of confidence articulated by the eyewitness at the time of an identification.
• Identification procedures should be video-recorded from start to finish to preserve a permanent record of the procedure.”

The article concluded stating:

This means that there is no longer any reason for chiefs or heads of law enforcement departments to be skeptical about the usefulness of these practices, a sentiment I can absolutely relate to. The scientific debate around these practices is over, and this report provides law enforcement agencies across the country an opportunity to update their eyewitness identification policies with the strong, scientifically supported practices.

(Brook, William G. III, “ When it Comes to ID Best Practices the Science is Settled” Community Policing Dispatch Vol. 7, Issue 12 December 2014 https://cops.usdoj.gov/html/dispatch/12-2014/eyewitness_id_best_practices.asp

5. Santa Clara and Other Jurisdictions

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 complaint.”^{[3] [4]}

The US Department of Justice January 6, 2017 updated their recommendations on Eyewitness Identification Procedures for Conducting Photo Arrays and included many of provisions of this bill including: using a blind or blinded procedure; making sure the fillers meet the basic description of the perpetrator; and taking a confidence statement as soon as the identification is made.

19 states have required eyewitness identification reform among these are West Virginia; North Carolina; Texas, Ohio, Nevada, Nebraska and Montana.

6. Argument in Support

Root and Rebound support this bill stating:

Since 1989, 186 men and women in our state have been found to have been wrongfully convicted, and in over a third of these cases, mistaken eyewitness identification was the basis for conviction. Mistaken identification by eyewitnesses is a problem throughout the U.S., providing the basis of nearly seventy percent of convictions later overturned by DNA nationwide. For the past three decades, the problem has been studied by stakeholders in the criminal justice system and social scientists. The result has been recommendations of evidence-proven practices that reduce the risk of wrongful identifications and wrongful convictions based on those identifications, while making it less likely that rightful identifications will be successfully challenged in court.

7. Argument in Opposition

The California Police Chiefs Association opposes this bill stating:

In a study conducted by the University of Aberdeen, Professors Amina Memon and Fiona Gabbert found that “sequential testing lowers the choosing rates of both younger and older adults such that they are more likely to miss the target when present.” Professors Memon and Gabbert went on to say there was a “tendency for sequential testing to increase false identifications among older adults.” Furthermore, the study Improving Eyewitness Identifications: Hennepin County’s Blind Sequential Lineup Pilot Project, reported that Hennepin County investigators “perceived no drop in number of quality of achieved suspect identifications.”

The added requirements from SB 923 would require additional staff, which may not be feasible for some departments. Specifically, if they are required to conduct blind administration of procedures tit would require additional officers to conduct parts of the investigation which could prove to be difficult for our smaller agencies. The bill would also require audio and visual recordings of the reactions of the victims when conducting the lineups. The cost of implementing and maintain the necessary equipment would put a strain on budgets which could potentially affect day to day operations.

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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. ↑

2. Gary Wells’ website: http://www.psychology.iastate.edu/FACULTY/gwells/Illinois_Pilot_Program_on_Sequential_Double-

   Blind_Identification_Procedures_reactions.pdf ↑

3. “California Commission on the Fair Administration of Justice Report and Recommendations Regarding Eye Witness Identification Procedures,” p. 3. ↑

4. 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. ↑