BILL NUMBER: AB 604INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Ammiano FEBRUARY 20, 2013 An act to add Section 806 to the Evidence Code, and to add Sections 686.3 and 1127i to the Penal Code, relating to criminal investigations. LEGISLATIVE COUNSEL'S DIGEST AB 604, as introduced, Ammiano. Criminal investigations: eyewitness identification. Existing law allows opinion testimony from expert witnesses to be admitted at trial upon specified showings. This bill would allow expert testimony regarding the reliability of an eyewitness identification to be admitted at trial if the proponent of the evidence establishes relevancy and proper qualifications of the witness. Existing law generally regulates the collection and admissibility of evidence for purposes of criminal prosecutions. This bill would authorize any law enforcement agency to adopt regulations for conducting photo and live lineups with eyewitnesses, and provides that specified procedures should be considered when adopting the regulations, including sequentially presenting photos used in an identification procedure and separating all witnesses when viewing an identification procedure. Existing law provides that in any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court before commencement of argument. This bill would require the court in a criminal trial or proceeding in which a witness testifies to an identification made before trial, as specified, to instruct the jury that they may consider evidence that law enforcement officers did or did not follow specified procedures during identification procedures when determining the reliability of the eyewitness identification. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares the following: (a) The goal of a law enforcement criminal investigation is to find and apprehend the person or persons responsible for committing a crime. (b) Eyewitness identification procedure studies indicate that the criminal justice system can significantly decrease the rate of erroneous eyewitness identifications by implementing changes to identification procedures. (c) A decrease in the number of erroneous eyewitness identifications will increase public trust in the criminal justice system, which, in turn, will increase the ability of law enforcement and prosecutors to convict the guilty and protect our communities. (d) New policies and procedures, such as those recommended by the National Institute of Justice, are readily available and have proven effective in other jurisdictions. States, including New Jersey and Oregon, have recognized and adopted the importance of tested eyewitness identification procedures that are shown to increase reliability. Several local jurisdictions in California have also adopted tested eyewitness identification procedures with great success and significant cost savings. SEC. 2. Section 806 is added to the Evidence Code, to read: 806. Expert testimony may be admitted regarding factors that affect the reliability of eyewitness identification if the proponent of the evidence establishes relevancy and proper qualifications of the witness. SEC. 3. Section 686.3 is added to the Penal Code, to read: 686.3. (a) Any local law enforcement agency, including, but not limited to, police departments, sheriffs, and prosecutors, may adopt regulations for conducting photo and live lineups with eyewitnesses. In adopting the regulations, those agencies are encouraged to consider all of the following procedures: (1) Prior to conducting the identification procedure, and as close in time to the incident as possible, have the eyewitness complete a standardized form describing the perpetrator of the offense. (2) If practicable, have the investigator conducting the identification procedure be a person who is not aware of which person in the identification procedure is suspected as the perpetrator of the offense. (3) Present photos used in an identification procedure sequentially, and not simultaneously. (4) Prior to any identification procedure, instruct an eyewitness of all the following: (A) The perpetrator may not be among the persons in the identification procedure. (B) The eyewitness should not feel compelled to make an identification. (C) An identification or failure to make an identification will not end the investigation. (5) If the identification procedure is being done sequentially, instruct an eyewitness of all of the following prior to the identification procedure: (A) Each photograph or person shall be viewed one at a time. (B) The photographs or persons shall be displayed in random order. (C) The eyewitness should take as much time as needed in making a decision about each photograph or person before moving to the next one. (D) All photographs or persons will be shown to the eyewitness, even if an identification is made before all photographs or persons have been viewed. (6) Compose an identification procedure so that the 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 resemble his or her appearance at the time of the offense and does not unduly stand out. (7) If the eyewitness has previously viewed an identification procedure in connection with the identification of another person suspected of involvement in the offense, have the fillers in the lineup in which the person suspected as the perpetrator participates be different from the fillers used in any prior lineups. (8) In a live lineup, have any identification actions, such as speaking or making gestures or other movements, be performed by all lineup participants. (9) All live lineup participants shall be out of the view of the eyewitness prior to the beginning of the identification procedure. (10) Have only one suspected perpetrator included in any identification procedure. (11) Have all witnesses separated when viewing an identification procedure. (12) If the eyewitness identifies a person he or she believes to be the perpetrator, then have all of the following apply: (A) The investigator shall immediately inquire as to the eyewitness's confidence level in the accuracy of the identification. (B) No information concerning the identified person shall be given to the eyewitness prior to obtaining the eyewitness's statement of confidence level. (13) Have a written record of the identification procedure be made that includes, at a minimum, all of the following: (A) All identification and nonidentification results obtained during the identification procedure and signed by the eyewitness. (B) A statement of the eyewitness' own words regarding how certain he or she is regarding the accuracy of his or her identification and signed by him or her. (C) The names of all persons present at the identification procedure. (D) The date, time, and location of the identification procedure. (E) If the identification procedure was conducted sequentially, the order in which the photographs or persons were displayed to the eyewitness. (F) Color copies of all photographs used in a photo lineup. (G) Identification information and the sources of all photographs used in a photo lineup. (H) Identification information for all individuals used in a live lineup and a video recording of the lineup. (b) For purposes of this section, the following terms have the following meanings: (1) "Eyewitness" means a person whose identification of another person may be relevant in a criminal investigation. (2) "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. (3) "Identification procedure" means either a photo lineup or a live lineup. (4) "Investigator" means the person conducting the live or photo lineup. (5) "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, is displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator. (6) "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, is displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator. SEC. 4. Section 1127i is added to the Penal Code, to read: 1127i. In any criminal trial or proceeding in which a witness testifies to an identification made before trial, either by viewing photographs or in person lineups, the court shall instruct the jury as follows: (a) The procedures listed in Section 683.3 of the Penal Code increase the reliability of eyewitness identifications. As jurors, you may consider evidence that police officers did or did not follow those procedures when you decide whether a witness in this case was correct or mistaken in identifying the defendant as the perpetrator of the crime. (b) If police officers did not follow the procedures recommended in Section 683.3 of the Penal Code, you may view the eyewitness identification with caution and close scrutiny. This does not mean that you may arbitrarily disregard his or her testimony, but you should give it the weight you think it deserves in the light of all the evidence in the case.