The original instrument and the following digest, which constitutes no part of the
legislative instrument, were prepared by Alden A. Clement Jr.
DIGEST
SB 38 Engrossed 2018 Regular Session Bishop
Proposed law provides relative to eyewitness identification procedures.
Proposed law provides relative to legislative intent.
Proposed law provides the following definitions:
(1) "Administrator" means the person conducting the live or photo lineup.
(2) "Blind" means the administrator does not know the identity of the suspect.
(3) "Blinded" means the administrator may know who the suspect is, but does not know which
lineup member is being viewed by the eyewitness.
(4) "Criminal justice entity" means any government agency or subunit thereof, or private agency
that, through statutory authorization or a legal formal agreement with a governmental unit
or agency, has the power of investigation, arrest, detention, prosecution, adjudication,
treatment, supervision, rehabilitation, or release of persons suspected, charged, or convicted
of a crime.
(5) "Eyewitness" means a person who observes another person at or near the scene of an offense.
(6) "Filler" means either a person, or a photograph of a person, who is not suspected of an
offense but is included in an identification procedure.
(7) "Folder shuffle method" means a procedure in which the suspect photos and nonsuspect or
filler photos are each placed in separate folders for a total of six photographs, and shuffled
together along with four blank folders and handed to the eyewitness one at a time so that the
administrator cannot see which photograph the eyewitness is viewing.
(8) "Live lineup" means an identification procedure in which a group of persons, including the
suspected 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 identifies
the suspect as the perpetrator.
(9) "Photo lineup" means an identification procedure in which an array of photographs, including
a photograph of the suspected perpetrator of an offense and additional photographs of other
persons not suspected of the offense, is displayed to an eyewitness either in hard copy form
or via computer or similar device for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.
(10) "Suspect" means the person believed by law enforcement to be the possible perpetrator of
the crime.
Proposed law provides that no later than 1/30/19, any criminal justice entity conducting eyewitness
identifications must adopt the La. Sheriff's Executive Management Institute ("LSEMI") model policy
on eyewitness identification procedures, or draft its own policy that minimally comports to key best
practices as outlined in proposed law. Proposed law further provides that each criminal justice entity
that administers eyewitness identification procedures must provide a copy of its written policies to
the La. Commission on Law Enforcement and Administration of Criminal Justice no later than
3/1/19.
Proposed law provides that for any criminal justice entity that elects to draft its own policy on
eyewitness identification procedures, these policies must:
(1) Be based on all of the following:
(a) Credible field, academic, or laboratory research on eyewitness memory.
(b) Relevant policies, guidelines, and best practices designed to reduce erroneous
eyewitness identifications and to enhance the reliability and objectivity of eyewitness
identifications.
(c) Other relevant information as appropriate.
(2) Include the following information regarding evidence-based practices:
(a) Procedures for selecting photograph and live lineup filler photographs or participants
to ensure that the photographs or participant are consistent in appearance with the
description of the alleged perpetrator and do not make the suspect noticeably stand
out.
(b)Instructions given to a witness before conducting a photograph or live lineup
identification procedure must include a statement that the person who committed the
offense may or may not be present in the procedure.
(c) Procedures for documenting and preserving the results of a photograph or live lineup
identification procedure, including the documentation of witness statements,
regardless of the outcome of the procedure.
(d) Procedures for administering a photograph or live lineup identification procedure to
an illiterate person or a person with limited English language proficiency.
(e) For a live lineup identification procedure, if practicable, procedures for assigning an administrator who is unaware of which member of the live lineup is the suspect in
the case or alternative procedures designed to prevent opportunities to influence the
witness.
(f) For a photograph identification procedure, procedures for assigning an administrator
who is capable of administering a photograph array in a blind manner or in a blinded
manner consistent with other proven or supported best practices designed to prevent
opportunities to influence the witness.
(g) Any other procedures or best practices supported by credible research or commonly
accepted as a means to reduce erroneous eyewitness identifications and to enhance
the objectivity and reliability of eyewitness identifications.
(3) Provide that a witness who makes an identification based on a photograph or live lineup
identification procedure be asked immediately after the procedure to state, in the witness's
own words, how confident the witness is in making the identification. A law enforcement
agency is to document any statement made in accordance with proposed law.
Proposed law provides that by December 31 of each odd-numbered year, the institute is to review
the model policy and training materials adopted under proposed law and modify the policy and
materials as appropriate while maintaining the requirements outlined in proposed law.
Proposed law provides that by September 1 of each even-numbered year, each law enforcement
agency is to review its policy adopted under proposed law and modify that policy as appropriate
while maintaining the requirements outlined in proposed law.
Proposed law provides that failure to conduct a photograph or live lineup identification procedure
in substantial compliance with the model policy or any other policy adopted under proposed law does
not bar the admission of eyewitness identification testimony.
Proposed law provides that a video record of identification procedures is to be made or, if a video
record is not practicable, an audio record is to be made. Proposed law further provides that if neither
a video nor audio record are practicable, the reasons must be documented in writing, and the lineup
administrator is to make a full and complete written record of the lineup.
Proposed law provides that the written eyewitness identification procedures of a criminal justice
entity must be made available, in writing, to the public upon request.
Proposed law provides that evidence of failure to comply with any of the provisions of proposed law:
(1) May be considered by the district court in adjudicating motions to suppress an eyewitness
identification.
(2) May be admissible in support of any claim of eyewitness misidentification, as long as such
evidence is otherwise admissible. Proposed law provides relative to legislative intent.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Adds C.Cr.P. Art. 251-253)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary C to the original bill
1. Changes certain dates for adopting and reporting relative to eyewitness identification
procedures.
2. Changes eyewitness identification model policy references from those of the
International Association of Chiefs of Police to those of the La. Sheriff's Executive
Management Institute model policy on eyewitness identification procedures.
3. Requires certain eyewitness identification procedures be provided to the La.
Commission on Law Enforcement and Administration of Criminal Justice instead of
the attorney general and the Dept. of Public Safety and Corrections.
4. Changes requirements for eyewitness identification procedures for certain criminal
justice entities.
5. Changes admissibility of certain evidence from mandatory to discretionary.
6. Deletes certain provisions of proposed law relative to admissibility of compliance or
noncompliance with proposed law.
7. Deletes select provisions of proposed law relative to legislative intent.