HLS 18RS-546 ORIGINAL
2018 Regular Session
HOUSE BILL NO. 582
BY REPRESENTATIVE JAMES
WITNESSES/CRIMINAL: Provides relative to law enforcement investigative procedures
relating to eyewitness identification
1 AN ACT
2To enact Part IX of Chapter 2 of Title 15 of the Louisiana Revised Statutes of 1950, to be
3 comprised of R.S. 15:479 through 481, relative to law enforcement investigative
4 procedures; to provide relative to law enforcement investigative procedures relating
5 to eyewitness identification; to provide for the adoption of policy relative to
6 eyewitness identification procedures; to provide standards for such policies; to
7 provide with respect to the failure to adopt or comply with such policies; to provide
8 for definitions; to provide for legislative intent; and to provide for related matters.
9Be it enacted by the Legislature of Louisiana:
10 Section 1. Part IX of Chapter 2 of Title 15 of the Louisiana Revised Statutes of 1950,
11to be comprised of R.S. 15:479 through 481, is hereby enacted to read as follows:
12 PART IX. EYEWITNESS IDENTIFICATION PROCEDURES
13 §479. Legislative intent
14 A. The legislature finds that police investigations are strengthened by the use
15 of best practices for investigative procedures that increase the ability of law
16 enforcement to keep communities safe and apprehend those suspected of criminal
17 activity, reduce erroneous eyewitness identifications, and enhance the reliability and
18 objectivity of eyewitness identification.
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1 B. When an innocent person is mistakenly identified as the perpetrator of a
2 crime, this increases the danger to the public and derails investigations. Victims of
3 crime experience either delayed justice or no justice at all.
4 C. Mistaken eyewitness identification has contributed to the wrongful
5 conviction in seventy percent of the nation's three hundred and fifty-three DNA-
6 based exonerations, and to the wrongful conviction in thirteen out of fourteen DNA-
7 based exonerations in Louisiana. The multi-faceted societal costs of wrongful and
8 erroneous convictions are burdensome and preventable.
9 D. Policies and procedures to improve the accuracy of eyewitness
10 identifications such as those recommended by the International Association of Chiefs
11 of Police and the Federal Bureau of Investigations would ensure that the integrity of
12 Louisiana criminal justice investigations is strengthened and enhanced to convict the
13 guilty and protect the innocent.
14 §480. Definitions
15 For the purposes of this Act:
16 (1) "Administrator" means the person conducting the photo or live lineup.
17 (2) "Blind" means the administrator does not know the identity of the
18 suspect.
19 (3) "Blinded" means the administrator may know who the suspect is, but
20 does not know which lineup member is being viewed by the eyewitness.
21 (4) "Eyewitness" means a person who observes another person at or near the
22 scene of an offense.
23 (5) "Filler" means either a person or a photograph of a person who is not
24 suspected of an offense and is included in an identification procedure.
25 (6) "Folder shuffle method" is a procedure in which the suspect photo and
26 non-suspect or "filler" photos, as defined by Paragraph (5) of this Section, are each
27 placed in separate folders for a total of six, and shuffled together along with four
28 blank folders and handed to the eyewitness one at a time so that the administrator
29 cannot see which photograph the eyewitness is viewing.
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1 (7) "Live lineup" means an identification procedure in which a group of
2 persons, including the suspected perpetrator of an offense and other persons not
3 suspected of the offense, is displayed to an eyewitness for the purpose of determining
4 whether the eyewitness identifies the suspect as the perpetrator.
5 (8) "Photo lineup" means an identification procedure in which an array of
6 photographs, including a photograph of the suspected perpetrator of an offense and
7 additional photographs of other persons not suspected of the offense, is displayed to
8 an eyewitness either in hard copy form or via computer for the purpose of
9 determining whether the eyewitness identifies the suspect as the perpetrator.
10 (9) "Showup" means an identification procedure in which an eyewitness is
11 presented with a single suspect for the purpose of determining whether the
12 eyewitness identifies this individual as the perpetrator.
13 (10) "Suspect" means the person believed by law enforcement to be the
14 possible perpetrator of the crime.
15 §481. Eyewitness identification procedures
16 A.(1) Not later than January 1, 2019, any criminal justice entity conducting
17 eyewitness identification procedures shall do either of the following:
18 (a) Adopt the International Association of Chiefs of Police model policy on
19 eyewitness identification procedures.
20 (b) Draft a policy for eyewitness identification procedures which minimally
21 comports to best practices and standards set forth in this Section.
22 (2) Each criminal justice entity in Louisiana that conducts eyewitness
23 identification procedures shall provide a copy of its written policies to the Louisiana
24 Commission on Law Enforcement and Administration of Criminal Justice no later
25 than February 1, 2019.
26 B. If any criminal justice entity elects to draft its own policy on eyewitness
27 identification procedures pursuant to Subparagraph (A)(1)(b) of this Section, the
28 policies shall, at a minimum, include all of the following:
29 (1) Having a blind or blinded administrator perform the live or photo lineup.
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1 (2) Providing the eyewitness with instructions as outlined in the International
2 Association of Chiefs of Police model policy that minimize the likelihood of an
3 inaccurate identification.
4 (3) Composing the lineup so that the fillers generally resemble the
5 eyewitness's description of the perpetrator, and so that the suspect does not stand out
6 from the fillers.
7 (4) Using the appropriate number of fillers in a live and a photo lineup.
8 (5) Ensuring, when practicable, that a photograph of the suspect used in a
9 photo lineup is contemporary.
10 (6) Presenting separate photo and live lineups when there are multiple
11 eyewitnesses, ensuring the same suspect is placed in a different position for each
12 identification procedure.
13 (7) Having the administrator seek and document a clear statement from the
14 eyewitness, immediately after the eyewitness makes an identification in the
15 eyewitness's own words, as to the eyewitness's confidence level that the person
16 identified is the person who committed the crime.
17 (8) Adopting relevant practices shown to enhance the reliability of an
18 eyewitness participating in a showup procedure, such as identifying the
19 circumstances under which a showup is warranted, transporting the eyewitness to a
20 neutral, non-law enforcement location where the detained suspect is being held,
21 removing the suspect from the law enforcement squad car, removing restraints from
22 the suspect when he is being observed by the eyewitness, and administering the
23 showup procedure close in time to the commission of the crime.
24 (9) Where practicable, electronically recording the entirety of the photo and
25 live lineup and the showup procedure either through video or audio, if video is not
26 possible.
27 (10) Preserving photographic documentation of all live and photo lineup
28 members, and showup suspects, documenting verbatim the descriptions provided by
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1 the eyewitness of the perpetrator as well as the confidence statement made by the
2 eyewitness during an identification procedure.
3 C. A video record of identification procedures shall be made. If a video
4 record is not practical, an audio record shall be made. If neither a video or audio
5 record are practical, the reasons shall be documented, and the lineup administrator
6 shall make a complete written record of the lineup.
7 D. All written eyewitness identification policies of a criminal justice entity
8 shall be made available to the public upon request.
9 E.(1) When a criminal justice entity fails to comply with Subsections A and
10 B of this Section, any of the following remedies may apply:
11 (a) Evidence of failure to comply with any of the provisions of Subsections
12 A and B of this Section shall be considered by the district court in adjudicating
13 motions to suppress identification evidence.
14 (b) Evidence of failure to comply with any of the provisions of Subsections
15 A and B of this Section shall be admissible in support of any claim of eyewitness
16 misidentification, as long as such evidence is otherwise admissible.
17 (2) The court may instruct the jury that it may consider credible evidence of
18 a criminal justice entity's compliance or noncompliance with the provisions of
19 Subsections A and B of this Section in determining the reliability of eyewitness
20 identifications.
21 (3) The court may permit expert testimony by the state or the defendant on
22 the subject of eyewitness identification.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 582 Original 2018 Regular Session James
Abstract: Provides relative to the adoption of policies by certain criminal justice entities
with respect to eyewitness identification procedures.
Proposed law requires any criminal justice entity conducting eyewitness identification
procedures to either adopt the International Assoc. of Chiefs of Police model policy on
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eyewitness identification procedures or draft a policy for eyewitness identification
procedures by Jan. 1, 2019, and to provide a copy of such policy to the La. Commission on
Law Enforcement and Administration of Criminal Justice by Feb. 1, 2019. Further provides
that all written eyewitness identification policies of a criminal justice entity shall be made
available to the public upon request.
If the criminal justice entity drafts its own policy for eyewitness identification, proposed law
provides that the policy shall, at a minimum, include the following standards or best
practices:
(1)Having a blind or blinded administrator perform the live or photo lineup.
(2)Providing the eyewitness with instructions as outlined in the International Assoc. of
Chiefs of Police model policy that minimize the likelihood of an inaccurate
identification.
(3)Composing the lineup so that the fillers generally resemble the eyewitness's
description of the perpetrator, and so that the suspect does not stand out from the
fillers.
(4)Using the appropriate number of fillers in a live and a photo lineup.
(5)Ensuring, when practicable, that a photograph of the suspect used in a photo lineup
is contemporary.
(6)Presenting separate photo and live lineups when there are multiple eyewitnesses,
ensuring the same suspect is placed in a different position for each identification
procedure.
(7)Having the administrator seek and document a clear statement from the eyewitness,
immediately after the eyewitness makes an identification in the eyewitness's own
words, as to the eyewitness's confidence level that the person identified is the person
who committed the crime.
(8)Adopting relevant practices shown to enhance the reliability of an eyewitness
participating in a showup procedure, such as identifying the circumstances under
which a showup is warranted, transporting the eyewitness to a neutral, non-law
enforcement location where the detained suspect is being held, removing the suspect
from the law enforcement squad car, removing restraints from the suspect when he
is being observed by the eyewitness, and administering the showup procedure close
in time to the commission of the crime.
(9)Where practicable, electronically recording the entirety of the photo and live lineup
and the showup procedure either through video or audio, if video is not possible.
(10)Preserving photographic documentation of all live and photo lineup members, and
showup suspects, documenting verbatim the descriptions provided by the eyewitness
of the perpetrator as well as the confidence statement made by the eyewitness during
an identification procedure.
Proposed law requires a video or audio recording of the eyewitness identification procedures
to be made. If neither a video or audio record are practical, proposed law requires the
reasons to be documented, and the lineup administrator to make a complete written record
of the lineup.
Proposed law provides that when a criminal justice entity fails to comply with these
provisions of proposed law, any of the following remedies may apply:
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(1)Evidence of such failure to comply shall be considered by the district court in
adjudicating motions to suppress identification evidence.
(2)Evidence of such failure to comply shall be admissible in support of any claim of
eyewitness misidentification, as long as such evidence is otherwise admissible.
In addition, proposed law provides that the court may instruct the jury that it may consider
credible evidence of a criminal justice entity's compliance or noncompliance with proposed
law in determining the reliability of eyewitness identifications. Further provides that the
court may permit expert testimony by the state or the defendant on the subject of eyewitness
identification.
Proposed law provides legislative intent and definitions of certain terms for purposes of
proposed law.
(Adds R.S. 15:479 - 481)
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