HB 1323

1	A bill to be entitled
2	An act relating to evidence of crimes; providing a short
3	title; amending s. 925.11, F.S.; providing definitions;
4	providing that governmental entities are only required to
5	maintain physical evidence for potential DNA testing for
6	serious crimes; providing for the preservation of evidence
7	in custody of governmental entities on the effective date
8	of the act; providing that only the portion of a piece of
9	evidence that is likely to contain biological evidence
10	must be retained and other portions of that piece of
11	evidence may be disposed of when the physical evidence is
12	of such a size, bulk, or physical character as to render
13	retention impracticable; providing that upon written
14	request by the defendant in a case of serious crime, a
15	governmental entity shall prepare an inventory of
16	biological evidence that has been preserved; providing for
17	creation of an Eyewitness Identification Task Force;
18	providing definitions; providing for membership; requiring
19	the task force to develop recommended guidelines for
20	policies, procedures, and training with respect to the
21	collection and handling of eyewitness evidence in criminal
22	investigations; requiring the task force to consider
23	specified policies and procedures; providing that the
24	guidelines developed by the task force shall serve as the
25	basis for a training program through the Criminal Justice
26	Standards and Training Commission; requiring the
27	Department of Law Enforcement to formulate a training
28	curriculum for new and existing law enforcement officers
29	using recommended guidelines by a specified date;
30	requiring a report by a specified date; providing for
31	minority reports; requiring that the report be posted on
32	the Internet and distributed to specified parties;
33	providing for termination of the task force and expiration
34	of its authorizing provisions; providing an effective
35	date.
36
37	Be It Enacted by the Legislature of the State of Florida:
38
39	Section 1.  This act may be entitled "The Enhancing Crime-
40	Solving Potential and Reliability of the Criminal Justice System
41	Act."
42	Section 2.  Section 925.11, Florida Statutes, is amended to
43	read:
44	925.11  Postsentencing DNA testing.-
45	(1)  DEFINITIONS.-As used in this section, the term:
46	(a)  "Biological evidence" means the contents of a sexual
47	assault examination kit and any item that contains blood, semen,
48	hair, saliva, skin tissue, fingernail scrapings, bone, bodily
49	fluids, or other identifiable biological material that was
50	collected as part of an investigation of a serious crime or that
51	may reasonably be used to incriminate or exculpate any person
52	for a serious crime. This includes all such material regardless
53	of whether that material is catalogued separately, such as on a
54	slide or swab or in a test tube, or is present on other
55	evidence, including, but not limited to, clothing, ligatures,
56	bedding, or other household material such as drinking cups,
57	cigarettes, envelopes, or like items.
58	(b)  "DNA" means deoxyribonucleic acid.
59	(c)  "Governmental entity" refers to any governmental or
60	public entity within the state, including any private entity
61	that performs functions described in this paragraph, and any
62	official or employee of such an entity, including, but not
63	limited to, any law enforcement agency, prosecutor's office,
64	court, crime laboratory, or other entity or individual charged
65	with the collection, storage, or retrieval of biological
66	evidence.
67	(d)  "Serious crime" means any felony violation contained
68	in any of the following provisions:
69	1.  Chapter 782, entitled "Homicide."
70	2.  Section 784.021, entitled "Aggravated Assault."
71	3.  Section 784.041, entitled "Felony battery; domestic
72	battery by strangulation."
73	4.  Section 784.045, entitled "Aggravated Battery."
74	5.  Section 787.01, entitled "Kidnapping; kidnapping of
75	child under age 13, aggravating circumstances."
76	6.  Section 787.02, entitled "False imprisonment; false
77	imprisonment of child under age 13, aggravating circumstances."
78	7.  Section 794.011, entitled "Sexual battery."
79	8.  Section 800.04, entitled "Lewd or lascivious offenses
80	committed upon or in the presence of persons less than 16 years
81	of age."
82	9.  Section 806.01, entitled "Arson."
83	10.  Section 806.031, entitled "Arson resulting in injury
84	to another; penalty."
85	11.  Section 810.02, entitled "Burglary."
86	12.  Section 812.13, entitled "Robbery."
87	13.  Section 812.131, entitled "Robbery by sudden
88	snatching."
89	14.  Section 812.133, entitled "Carjacking."
90	15.  Section 812.135, entitled "Home-invasion robbery."
91	(2)(1)  PETITION FOR EXAMINATION.-
92	(a)1.  A person who has been tried and found guilty of
93	committing a felony and has been sentenced by a court
94	established by the laws of this state may petition that court to
95	order the examination of physical evidence collected at the time
96	of the investigation of the crime for which he or she has been
97	sentenced that may contain DNA (deoxyribonucleic acid) and that
98	would exonerate that person or mitigate the sentence that person
99	received.
100	2.  A person who has entered a plea of guilty or nolo
101	contendere to a felony prior to July 1, 2006, and has been
102	sentenced by a court established by the laws of this state may
103	petition that court to order the examination of physical
104	evidence collected at the time of the investigation of the crime
105	for which he or she has been sentenced that may contain DNA
106	(deoxyribonucleic acid) and that would exonerate that person.
107	(b)  A petition for postsentencing DNA testing under
108	paragraph (a) may be filed or considered at any time following
109	the date that the judgment and sentence in the case becomes
110	final.
111	(3)(2)  METHOD FOR SEEKING POSTSENTENCING DNA TESTING.-
112	(a)  The petition for postsentencing DNA testing must be
113	made under oath by the sentenced defendant and must include the
114	following:
115	1.  A statement of the facts relied on in support of the
116	petition, including a description of the physical evidence
117	containing DNA to be tested and, if known, the present location
118	or the last known location of the evidence and how it was
119	originally obtained;
120	2.  A statement that the evidence was not previously tested
121	for DNA or a statement that the results of any previous DNA
122	testing were inconclusive and that subsequent scientific
123	developments in DNA testing techniques would likely produce a
124	definitive result establishing that the petitioner is not the
125	person who committed the crime;
126	3.  A statement that the sentenced defendant is innocent
127	and how the DNA testing requested by the petition will exonerate
128	the defendant of the crime for which the defendant was sentenced
129	or will mitigate the sentence received by the defendant for that
130	crime;
131	4.  A statement that identification of the defendant is a
132	genuinely disputed issue in the case, and why it is an issue;
133	5.  Any other facts relevant to the petition; and
134	6.  A certificate that a copy of the petition has been
135	served on the prosecuting authority.
136	(b)  Upon receiving the petition, the clerk of the court
137	shall file it and deliver the court file to the assigned judge.
138	(c)  The court shall review the petition and deny it if it
139	is insufficient. If the petition is sufficient, the prosecuting
140	authority shall be ordered to respond to the petition within 30
141	days.
142	(d)  Upon receiving the response of the prosecuting
143	authority, the court shall review the response and enter an
144	order on the merits of the petition or set the petition for
145	hearing.
146	(e)  Counsel may be appointed to assist the sentenced
147	defendant if the petition proceeds to a hearing and if the court
148	determines that the assistance of counsel is necessary and makes
149	the requisite finding of indigency.
150	(f)  The court shall make the following findings when
151	ruling on the petition:
152	1.  Whether the sentenced defendant has shown that the
153	physical evidence that may contain DNA still exists;
154	2.  Whether the results of DNA testing of that physical
155	evidence would be admissible at trial and whether there exists
156	reliable proof to establish that the evidence has not been
157	materially altered and would be admissible at a future hearing;
158	and
159	3.  Whether there is a reasonable probability that the
160	sentenced defendant would have been acquitted or would have
161	received a lesser sentence if the DNA evidence had been admitted
162	at trial.
163	(g)  If the court orders DNA testing of the physical
164	evidence, the cost of such testing may be assessed against the
165	sentenced defendant unless he or she is indigent. If the
166	sentenced defendant is indigent, the state shall bear the cost
167	of the DNA testing ordered by the court.
168	(h)  Any DNA testing ordered by the court shall be carried
169	out by the Department of Law Enforcement or its designee, as
170	provided in s. 943.3251.
171	(i)  The results of the DNA testing ordered by the court
172	shall be provided to the court, the sentenced defendant, and the
173	prosecuting authority.
174	(4)(3)  RIGHT TO APPEAL; REHEARING.-
175	(a)  An appeal from the court's order on the petition for
176	postsentencing DNA testing may be taken by any adversely
177	affected party.
178	(b)  An order denying relief shall include a statement that
179	the sentenced defendant has the right to appeal within 30 days
180	after the order denying relief is entered.
181	(c)  The sentenced defendant may file a motion for
182	rehearing of any order denying relief within 15 days after
183	service of the order denying relief. The time for filing an
184	appeal shall be tolled until an order on the motion for
185	rehearing has been entered.
186	(d)  The clerk of the court shall serve on all parties a
187	copy of any order rendered with a certificate of service,
188	including the date of service.
189	(5)(4)  PRESERVATION OF EVIDENCE.-
190	(a)  Governmental entities shall preserve physical evidence
191	potentially containing biological evidence on which a
192	postsentencing testing of DNA may be requested if that evidence
193	is secured in relation to an investigation or prosecution of:
194	1.  A serious crime for the period of time that the serious
195	crime remains unsolved; or
196	2.  A serious crime for the period of time that an
197	individual is incarcerated based on a conviction for that
198	serious crime and is in the custody of an evidence-holding
199	agency in this state on July 1, 2010 Governmental entities that
200	may be in possession of any physical evidence in the case,
201	including, but not limited to, any investigating law enforcement
202	agency, the clerk of the court, the prosecuting authority, or
203	the Department of Law Enforcement shall maintain any physical
204	evidence collected at the time of the crime for which a
205	postsentencing testing of DNA may be requested.
206	(b)  In a case in which the death penalty is imposed, the
207	evidence shall be maintained for 60 days after execution of the
208	sentence. In all other cases, a governmental entity may dispose
209	of the physical evidence if:
210	1.  The term of the sentence imposed in the case has
211	expired and no other provision of law or rule requires that the
212	physical evidence be preserved or retained; or
213	2.  The physical evidence is of such a size, bulk, or
214	physical character as to render retention impracticable. When
215	such retention is impracticable, the governmental entity shall
216	remove and preserve portions of the material evidence likely to
217	contain biological evidence related to the serious crime in a
218	quantity sufficient to permit future DNA testing before
219	returning or disposing of the physical evidence.
220	(c)  Upon written request by the defendant in a case of
221	serious crime, a governmental entity shall prepare an inventory
222	of biological evidence that has been preserved in connection
223	with that case.
224	Section 3.  Eyewitness Identification Task Force.-
225	(1)  As used in this section, the term:
226	(a)  "Administrator" means the person conducting a photo or
227	live lineup.
228	(b)  "Blind" means the administrator does not know the
229	identity of the suspect.
230	(c)  "Blinded" means the administrator may know who the
231	suspect is, but does not know which lineup member is being
232	viewed by the eyewitness.
233	(d)  "Eyewitness" means a person who observes another
234	person at or near the scene of an offense.
235	(e)  "Filler" means either a person or a photograph of a
236	person who is not suspected of an offense and is included in an
237	identification procedure.
238	(f)  "Live lineup" means an identification procedure in
239	which a group of persons, including the suspected perpetrator of
240	an offense and persons who are fillers, are displayed to an
241	eyewitness for the purpose of determining whether the eyewitness
242	identifies the suspect as the perpetrator.
243	(g)  "Photo lineup" means an identification procedure in
244	which an array of photographs, including a photograph of the
245	suspected perpetrator of an offense and additional photographs
246	of persons who are fillers, are displayed to an eyewitness
247	either in hard copy form or via digital imaging for the purpose
248	of determining whether the eyewitness identifies the suspect as
249	the perpetrator.
250	(h)  "Showup" means an identification procedure in which an
251	eyewitness is presented with a single suspect for the purpose of
252	determining whether the eyewitness identifies this individual as
253	the perpetrator.
254	(2)  An Eyewitness Identification Task Force shall be
255	convened by the executive director of the Department of Law
256	Enforcement and is composed of 10 members as follows:
257	(a)  The Florida Police Chiefs Association shall appoint
258	two members:
259	1.  One of whom must be from a small law enforcement
260	agency; and
261	2.  One of whom must be from a large law enforcement agency
262	accredited by the Commission on Accreditation for Law
263	Enforcement Agencies.
264	(b)  The Florida Sheriffs Association shall appoint one
265	member.
266	(c)  The Attorney General shall appoint one member, who
267	must be an attorney who represents the state in the prosecution
268	of felonies and is a member of the Florida Prosecuting Attorneys
269	Association.
270	(d)  The executive director of the Department of Law
271	Enforcement shall appoint one member who is actively involved in
272	the development of the department's curricula.
273	(e)  The Chief Justice of the Supreme Court shall appoint
274	one member, who must be a member of the judiciary.
275	(f)  The Chancellor of the State University System shall
276	appoint two members:
277	1.  One of whom must be a law professor; and
278	2.  One of whom must be a professor of psychology with
279	experience in research related to memory.
280	(g)  The Florida Public Defender Association shall appoint
281	one member, who must be a criminal defense lawyer.
282	(h)  The executive director of the Innocence Project of
283	Florida or his or her designee shall be a member.
284	(3)  The task force members, in consultation with
285	eyewitness identification practitioners and experts, shall
286	develop recommended guidelines for policies, procedures, and
287	training with respect to the collection and handling of
288	eyewitness evidence in criminal investigations by law
289	enforcement agencies in the state that are shown by reliable
290	evidence to enhance the accuracy of eyewitness identification.
291	(4)  The task force shall consider the following policies
292	and practices to enhance the accuracy and reliability of
293	eyewitness evidence, including, without limitation:
294	(a)  Employing a blind or blinded administrator in the
295	administration of live and photo lineups.
296	(b)  Issuing specific instructions to the eyewitness before
297	and during the live or photo lineup or showup, which may
298	include:
299	1.  That the perpetrator may or may not be among the
300	persons in the identification procedure or, in the case of a
301	showup, may or may not be the person that is presented to the
302	eyewitness.
303	2.  That the administrator does not know who the
304	perpetrator is.
305	3.  That the eyewitness should not feel compelled to make
306	an identification.
307	4.  That the investigation will continue whether or not an
308	identification is made.
309	5.  That the procedure requires the administrator to ask
310	the eyewitness to state, in his or her own words, how certain he
311	or she is of any identification.
312	6.  That the eyewitness not discuss the identification
313	procedure or its results with other eyewitnesses involved in the
314	case or contact the media.
315	(c)  In a photo lineup, ensuring that the photograph of the
316	suspect is contemporary and resembles the suspect's appearance
317	at the time of the offense.
318	(d)  Using four or more fillers in live lineups and five or
319	more fillers in photo lineups and ensuring that those fillers
320	generally resemble the eyewitness's description of the
321	perpetrator.
322	(e)  Using only one suspect in any live or photo lineup and
323	ensuring that the suspect does not unduly stand out from the
324	fillers.
325	(f)  Using different fillers in successive lineups
326	administered for the same eyewitness when new suspects are
327	introduced.
328	(g)  Presenting separate photo and live lineups when there
329	are multiple eyewitnesses, while ensuring the same suspect is
330	placed in a different position for each identification
331	procedure.
332	(h)  Taking measures to avoid communication about the
333	identity of the suspect to the eyewitness and ensuring that
334	communication among multiple eyewitnesses is prevented.
335	(i)  Presenting members of photo and live lineups one at a
336	time.
337	(j)  Assessing the circumstances under which a showup is
338	warranted and the attendant measures that should be undertaken
339	to prevent or reduce suggestibility.
340	(k)  Determining when the administrator should record the
341	eyewitness's statement of confidence in his or her selection in
342	the live or photo lineup or showup procedure.
343	(l)  Refraining from providing any confirmatory information
344	to the eyewitness.
345	(m)  Producing a video or audio recording of the photo or
346	live lineup, showup, or other procedure.
347	(5)  Such guidelines shall also provide the basis for a
348	training program through the Criminal Justice Standards and
349	Training Commission, which shall devise a curriculum adopting
350	those recommended policies and procedures for law enforcement
351	agencies in the this state.
352	(6)  The task force shall establish guidelines for
353	eyewitness identification procedures pursuant to subsections
354	(1)-(5) by October 1, 2011.
355	(7)  The Department of Law Enforcement shall formulate a
356	training curriculum for new and existing law enforcement
357	officers that comprises the recommended guidelines established
358	pursuant to subsections (1)-(5) by June 30, 2012.
359	(8)  The task force shall submit a report on the guidelines
360	developed and recommendations concerning their use by October 1,
361	2011. Minority reports may also be issued. These reports shall
362	be posted on the state's official website and presented to the
363	Governor, the Chief Justice of the Supreme Court, the President
364	of the Senate, the Speaker of the House of Representatives, and
365	the standing committees of the Legislature having oversight
366	jurisdiction of matters relating to criminal law and procedures.
367	The task force shall terminate on the date that it submits such
368	report or October 1, 2011, whichever is earlier, and this
369	section expires on that date.
370	Section 4.  This act shall take effect July 1, 2010.

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