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.
   22  Be It Enacted by the Legislature of the State of Florida:
   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.
   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         (4ALTERNATIVE 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.