Florida Senate - 2011 SB 1206 By Senator Negron 28-01150A-11 20111206__ 1 A bill to be entitled 2 An act relating to eyewitness identification; 3 providing a short title; defining terms; requiring 4 state, county, municipal, and other law enforcement 5 agencies that conduct lineups to follow certain 6 specified procedures; requiring the eyewitness to sign 7 an acknowledgement that he or she received the 8 instructions about the lineup procedures from the law 9 enforcement agency; providing for an alternative 10 method of identification of suspects; requiring the 11 Criminal Justice Standards and Training Commission to 12 specify and approve any alternative method used for 13 eyewitness identification; requiring that any such 14 method be neutral in its administration; specifying 15 remedies for failing to adhere to the eyewitness 16 identification procedures; requiring the Criminal 17 Justice Standards and Training Commission to create 18 educational materials and conduct training programs on 19 how to conduct lineups in compliance with the act; 20 providing an effective date. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. Eyewitness identification.— 25 (1) SHORT TITLE.—This section may be cited as the 26 “Eyewitness Identification Reform Act.” 27 (2) DEFINITIONS.—As used in this section, the term: 28 (a) “Eyewitness” means a person whose identification by 29 sight of another person may be relevant in a criminal 30 proceeding. 31 (b) “Filler” means a person or a photograph of a person who 32 is not suspected of an offense but is included in a lineup. 33 (c) “Independent administrator” means a person who is not 34 participating in the investigation of a criminal offense and is 35 unaware of which person in the lineup is the suspect. 36 (d) “Lineup” means a photo lineup or live lineup. 37 (e) “Lineup administrator” means the person who conducts a 38 lineup. 39 (f) “Live lineup” means a procedure in which a group of 40 people is displayed to an eyewitness for the purpose of 41 determining if the eyewitness is able to identify the 42 perpetrator of a crime. 43 (g) “Photo lineup” means a procedure in which an array of 44 photographs is displayed to an eyewitness for the purpose of 45 determining if the eyewitness is able to identify the 46 perpetrator of a crime. 47 (3) EYEWITNESS IDENTIFICATION PROCEDURES.—Lineups conducted 48 in this state by state, county, municipal, and other law 49 enforcement agencies must meet all of the following 50 requirements: 51 (a) A lineup must be conducted by an independent 52 administrator or pursuant to an alternative method as provided 53 by subsection (4). 54 (b) Individuals or photos must be presented to witnesses 55 sequentially, with each individual or photo presented to the 56 witness separately, in a previously determined order. 57 Thereafter, each individual or photo must be removed after being 58 viewed before the next individual or photo is presented. 59 (c) Before a lineup, the eyewitness shall be instructed 60 that: 61 1. The perpetrator might or might not be in the lineup; 62 2. The lineup administrator does not know the suspect’s 63 identity; 64 3. The eyewitness should not feel compelled to make an 65 identification; 66 4. It is as important to exclude innocent persons as it is 67 to identify the perpetrator; and 68 5. The investigation will continue with or without an 69 identification. 70 71 The eyewitness shall acknowledge, in writing, having received a 72 copy of the lineup instructions. If the eyewitness refuses to 73 sign a document acknowledging receipt of the instructions, the 74 lineup administrator shall document the refusal of the 75 eyewitness to sign the writing and then sign the acknowledgement 76 himself or herself. 77 (d) In a photo lineup, the photograph of the suspect must 78 be contemporary and, to the extent practicable, resemble the 79 suspect’s appearance at the time of the offense. 80 (e) The lineup shall be composed so that the fillers 81 generally resemble the eyewitness’s description of the 82 perpetrator, while ensuring that the suspect does not unduly 83 stand out from the fillers. In addition: 84 1. In a photo or live lineup at least five fillers must be 85 included in the lineup, in addition to the suspect. 86 2. If the eyewitness has previously viewed a photo or live 87 lineup in connection with the identification of another person 88 suspected of involvement in the offense, the fillers in the 89 lineup in which the current suspect participates must be 90 different from the fillers used in any previous lineup. 91 (f) If there are multiple eyewitnesses, the suspect shall 92 be placed in a different position in the lineup or photo array 93 for each eyewitness. 94 (g) In any lineup, writings or information concerning any 95 previous arrest, indictment, or conviction of the suspect may 96 not be visible or made known to the eyewitness. 97 (h) In a live lineup, any identifying actions of the 98 suspect, such as speech, gestures, or other movements, must be 99 performed by all lineup participants. 100 (i) In a live lineup, all lineup participants must be out 101 of view of the eyewitness before the lineup. 102 (j) Only one suspect shall be included in a lineup. 103 (k) An eyewitness may be told nothing regarding the 104 suspect’s position in the lineup or anything that might 105 influence the eyewitness’s identification. 106 (l) The lineup administrator shall seek and document a 107 clear statement from the eyewitness at the time of the 108 identification, and in the eyewitness’s own words, as to the 109 eyewitness’s confidence level that the person identified in a 110 lineup is the perpetrator. The lineup administrator shall 111 separate all witnesses in order to discourage witnesses from 112 conferring with one another before or during the identification 113 procedure. Each witness shall be given instructions regarding 114 the identification procedures without other witnesses present. 115 (m) If the eyewitness identifies a person as the 116 perpetrator, the eyewitness may not be provided any information 117 concerning the person before the lineup administrator obtains 118 the eyewitness’s statement of confidence regarding the 119 identification of the suspect. There may not be anyone present 120 during the live lineup or photographic identification procedures 121 who knows the suspect’s identity, except the eyewitness and 122 counsel as required by law. 123 (n) Unless it is not practical, a video record of a live 124 identification procedure shall be made. If a video record is not 125 practical, the reason for the impracticality must be documented 126 and an audio record shall be made in its place. If neither a 127 video or audio record is practical, the reasons for the 128 impracticality must be documented and the lineup administrator 129 shall make a written record of the lineup. 130 (o) The record, by whatever means recorded, must include 131 all of the following information: 132 1. All identification and nonidentification results, 133 including the eyewitness’s statement of confidence, obtained 134 during the identification procedure. 135 2. The signature of the eyewitness. If the eyewitness 136 refuses to sign the record, the lineup administrator shall 137 document the refusal of the eyewitness to sign the results and 138 sign the record. 139 3. The names of all persons present at the lineup. 140 4. The date, time, and location of the lineup. 141 5. The words used by the eyewitness in any identification, 142 including words that describe the eyewitness’s certainty of 143 identification. 144 6. Whether it was a photo lineup or live lineup and how 145 many photos or individuals were presented in the lineup. 146 7. The sources of all photographs or persons used. 147 8. In a photo lineup, the photographs themselves. 148 9. In a live lineup, a photo or other visual recording of 149 the lineup which includes all persons who participated in the 150 lineup. 151 (4) ALTERNATIVE METHOD FOR IDENTIFICATION.—In lieu of using 152 an independent administrator, a photo lineup eyewitness 153 identification procedure may be conducted using an alternative 154 method specified and approved by the Criminal Justice Standards 155 and Training Commission. Any alternative method must be 156 carefully structured to achieve neutral administration and to 157 prevent the administrator from knowing which photograph is being 158 presented to the eyewitness during the identification procedure. 159 The alternative methods may include: 160 (a) Automated computer programs that can automatically 161 administer the photo lineup directly to an eyewitness and 162 prevent the lineup administrator from seeing which photo the 163 witness is viewing until after the procedure is completed; or 164 (b) A procedure in which photographs are placed in folders, 165 randomly numbered, and shuffled and then presented to an 166 eyewitness such that the administrator cannot see or track which 167 photograph is being presented to the witness until after the 168 procedure is completed. 169 (5) REMEDIES.—All of the following remedies are available 170 as consequence of a person not complying with the requirements 171 of this section: 172 (a)1. A failure on the part of a person to comply with any 173 requirement of this section shall be considered by the court 174 when adjudicating motions to suppress eyewitness identification. 175 2. A failure on the part of a person to comply with any 176 requirement of this section is admissible in support of claims 177 of eyewitness misidentification, as long as such evidence is 178 otherwise admissible. 179 (b) When evidence of compliance or noncompliance with the 180 requirements of this section has been presented at trial, the 181 jury shall be instructed that it may consider credible evidence 182 of compliance or noncompliance to determine the reliability of 183 eyewitness identifications. 184 (6) EDUCATION AND TRAINING.—The Criminal Justice Standards 185 and Training Commission, in consultation with the Department of 186 Law Enforcement, shall create educational materials and conduct 187 training programs on how to conduct lineups in compliance with 188 this section. 189 Section 2. This act shall take effect July 1, 2011.