HB 821

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

CODING: Words stricken are deletions; words underlined are additions.