California Assembly Bill AB807 Amended / Bill

 BILL NUMBER: AB 807AMENDED BILL TEXT AMENDED IN SENATE SEPTEMBER 10, 2013 AMENDED IN ASSEMBLY APRIL 11, 2013 AMENDED IN ASSEMBLY MARCH 21, 2013 INTRODUCED BY Assembly Member Ammiano FEBRUARY 21, 2013  An act to amend Sections 13010.5, 13012, and 13012.5 of the Penal Code, relating to criminal justice statistics.   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 807, as amended, Ammiano.  Criminal justice statistics.   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, and where the local law enforcement agency in that jurisdiction has adopted recommended live and photo eyewitness identification procedures, to give specified instructions to the jury, including an instruction 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. The bill would authorize the court to provide the same instructions in a jurisdiction that has not adopted the recommended live and photo eyewitness identification procedures.   Existing law requires the Department of Justice to collect specified criminal justice information from local law enforcement agencies, to tabulate, analyze, and interpret the collected data, and to prepare an annual report presenting the criminal justice statistics for the previous year.   This bill would require the Department of Justice to include in the annual report additional statistical information relating to complaints received by law enforcement agencies, as specified, and criminal convictions of peace officers. The bill would also make technical, nonsubstantive changes.  Vote: majority. Appropriation: no. Fiscal committee:  yes   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, including the identification procedure, 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. (a) 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, and where the local law enforcement agency in that jurisdiction has adopted the recommended live and photo eyewitness identification procedures listed in Section 686.3, the court shall instruct the jury as follows or admonish the jury with a substantially similar instruction: (1) The procedures listed in Section 686.3 are designed to decrease the likelihood of misidentification when the police conduct an identification procedure, such as a lineup. 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. (2) Use of these procedures alone does not mean that the witness is correct or is credible, but only that police followed procedures that are designed to decrease the likelihood that the witness will make a mistake during the lineup or other identification procedure. (3) If police officers did not follow the procedures recommended in Section 686.3, consider 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. (b) In any criminal proceeding or trial in which a witness testifies to an identification made before trial in a jurisdiction that has not adopted the recommended live and photo eyewitness identification procedures listed in Section 686.3, the court may, but is not required to, provide the jury with the instruction in subdivision (a) or admonish the jury with a substantially similar instruction. (c) In addition to the jury instruction required under subdivision (a) and authorized under subdivision (b), the court may, but is not required to, provide the jury with any additional instructions the court may deem necessary.   SECTION 1.   Section 13010.5 of the Penal Code is amended to read: 13010.5. The department shall collect data pertaining to the juvenile justice system for criminal history and statistical purposes. This information shall serve to assist the department in complying with the reporting requirement of paragraphs (3) and (4) of subdivision (a) of Section 13012, measuring the extent of juvenile delinquency, determining the need for and effectiveness of relevant legislation, and identifying long-term trends in juvenile delinquency. Any data collected pursuant to this section may include criminal history information which may be used by the department to comply with the requirements of Section 602.5 of the Welfare and Institutions Code.   SEC. 2.   Section 13012 of the Penal Code is amended to read: 13012. (a) The annual report of the department provided for in Section 13010 shall contain statistics showing all of the following: (1) The amount and the types of offenses known to the public authorities. (2) The personal and social characteristics of criminals and delinquents. (3) The administrative actions taken by law enforcement, judicial, penal, and correctional agencies or institutions, including those in the juvenile justice system, in dealing with criminals or delinquents. (4) The administrative actions taken by law enforcement, prosecutorial, judicial, penal, and correctional agencies, including those in the juvenile justice system, in dealing with minors who are the subject of a petition or hearing in the juvenile court to transfer their case to the jurisdiction of an adult criminal court or whose cases are directly filed or otherwise initiated in an adult criminal court. (5) (A) The total number of each of the following: (i) Citizens' complaints received by law enforcement agencies under Section 832.5. (ii) Complaints received by law enforcement agencies against the personnel of a department or agency that employs peace officers that are made by that personnel's supervisor or by the personnel of another department or agency that employs peace officers. (iii) Complaints received by law enforcement agencies against the personnel of a department or agency that employs peace officers in which the identity of the complainant is unknown. (B) The department shall categorize each complaint into one of the categories identified in clauses (i) to (viii), inclusive, and report the number of complaints received by law enforcement agencies within each of those categories. (i) "Excessive force," which means a complaint regarding the use or threatened use of excessive force against a person. (ii) "Improper arrest," which means a complaint that the restraint of a person's liberty was improper or unjust, or violated the person' s civil liberties. (iii) "Improper entry," which means a complaint that the entry into a building or onto property was improper or that excessive force was used against property to gain entrance into a building or onto property. (iv) "Improper search," which means a complaint that the search of a person or property was improper. (v) "Other criminal violation," which means a complaint regarding the commission of an illegal act not otherwise specified. (vi) "Differential treatment," which means a complaint that the taking, failure to take, or method of police action was predicated upon irrelevant factors, including, but not limited to, race, appearance, age, or sex. (vii) "Demeanor," which means a complaint that the personnel's bearing, gestures, language, or other characteristics or actions were inappropriate. (viii) "Other rule violation," which means a complaint for conduct that violates agency rules, but that is not encompassed in a category specified in clauses (i) to (vii), inclusive. (C) The statistics required to be reported pursuant to this paragraph shall indicate, within each category of complaint identified in subparagraph (B), the number of complaints within each of the following disposition categories: (i) "Sustained," which means that the investigation disclosed sufficient evidence to prove the truth of the allegation in the complaint by a preponderance of the evidence. (ii) "Exonerated," which means that the investigation clearly established that the actions of the personnel that formed the basis of the complaint are not a violation of law or agency policy. (iii) "Not sustained," which means that the investigation failed to disclose sufficient evidence to clearly prove or disprove the allegation in the complaint. (iv) "Unfounded," which means that the investigation clearly established that the allegation is not true. (D) The statistics required to be reported pursuant to this paragraph shall be reported for each individual law enforcement agency. (6) The total number of felony and misdemeanor convictions incurred by peace officers for conduct occurring either on- or off-duty. (b) It shall be the duty of the department to give adequate interpretation of the statistics and so to present the information that it may be of value in guiding the policies of the Legislature and of those in charge of the apprehension, prosecution, and treatment of the criminals and delinquents, or concerned with the prevention of crime and delinquency. The report shall also include statistics which are comparable with national uniform criminal statistics published by federal bureaus or departments heretofore mentioned.   SEC. 3.   Section 13012.5 of the Penal Code is amended to read: 13012.5. (a) The annual report published by the department under Section 13010 shall, in regard to the contents required by subdivision (d) of Section 13012, include the following statewide information: (1) The annual number of fitness hearings held in the juvenile courts under Section 707 of the Welfare and Institutions Code, and the outcomes of those hearings including orders to remand to adult criminal court, cross-referenced with information about the age, gender, ethnicity, and offense of the minors whose cases are the subject of those fitness hearings. (2) The annual number of minors whose cases are filed directly in adult criminal court under Sections 602.5 and 707 of the Welfare and Institutions Code, cross-referenced with information about the age, gender, ethnicity, and offense of the minors whose cases are filed directly to the adult criminal court. (3) The outcomes of cases involving minors who are prosecuted in adult criminal courts, regardless of how adult court jurisdiction was initiated, including whether the minor was acquitted or convicted, or whether the case was dismissed and returned to juvenile court, including sentencing outcomes, cross-referenced with the age, gender, ethnicity, and offense of the minors subject to these court actions. (b) The department's annual report published under Section 13010 shall include the information described in paragraph (4) of subdivision (a) of Section 13012, as further delineated by this section, beginning with the report due on July 1, 2003, for the preceding calendar year.