81R1612 SJM-F
By: Gallego H.B. No. 3583
A BILL TO BE ENTITLED
AN ACT
relating to photograph and live lineup identification procedures in
criminal cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.20 to read as follows:
Art. 38.20. PHOTOGRAPH AND LIVE LINEUP IDENTIFICATION
PROCEDURES.
Sec. 1. (a) Each law enforcement agency in this state shall
adopt and as necessary amend a detailed written policy regarding
the administration of photograph and live lineup identification
procedures that conforms to the requirements of Section 2. The
policy must address the manner in which a photograph array or live
lineup should be administered to an illiterate person or a person
with limited English language proficiency.
(b) The Texas Commission on Law Enforcement Officer
Standards and Education, in consultation with state and local law
enforcement agencies and scientific experts, shall develop, adopt,
and disseminate to all state and local law enforcement agencies in
this state a model policy and associated training materials
regarding the administration of photograph and live lineup
identification procedures. The model policy must conform to the
requirements of Section 2.
Sec. 2. (a) Before a photograph or live lineup
identification procedure, the person administering the procedure
shall:
(1) inform the witness that:
(A) the offender may not be among those shown;
(B) the witness is not required to make an
identification; and
(C) the investigation of the case will continue
regardless of whether the witness makes an identification; and
(2) obtain from the witness a written acknowledgement
of receipt of the instructions required by this subsection.
(b) If the witness identifies an individual as the offender,
the person administering the photograph or live lineup
identification procedure shall require the witness to characterize
in writing, in the witness's own words, the degree of certainty of
the witness that the individual identified is the offender. The
person administering the procedure must obtain the statement
required under this subsection before providing any information
concerning the identified individual to the witness.
(c) If practicable, a photograph or live lineup
identification procedure must be videotaped. If the procedure is
not videotaped, the person administering the procedure shall
document in writing the reason the procedure was not videotaped and
if practicable shall audiotape the procedure instead. If the
procedure is not audiotaped, the person administering the procedure
shall document in writing the reason the procedure was not
audiotaped. To the extent applicable, a videotaped or audiotaped
recording of a photograph or live lineup identification procedure
must include, as applicable, a visual or audio representation of
the entire procedure. Any documentation of a photograph or live
lineup identification procedure shall be kept in the case file,
regardless of the outcome of the procedure.
(d) Each member of a photograph array or live lineup must
resemble the witness's description of the offender's significant
features, such as the offender's facial features, weight, or build,
including any unique or unusual features, such as a scar or tattoo.
In a live lineup, each lineup member shall perform identifying
actions, such as speech, gestures, or movements, specified by the
witness in describing the offender. In a photograph array, the
photograph of the suspect must be recent and, if possible, resemble
the suspect's appearance at the time the offense was committed.
Only one member of a photograph array or live lineup may be a
suspect in the case. The remaining members must be individuals who
are not suspects but who, without appearing to be significantly
different from the suspect, resemble the witness's description of
the offender as required by this subsection. Five or more
individuals who are not suspects must be included in a photograph
array, and four or more individuals who are not suspects must be
included in a live lineup.
(e) If practicable, the person who administers a photograph
or live lineup identification procedure may not be made aware of
which member of the photograph array or live lineup is the suspect
in the case. If the person who administers the procedure is aware
of the identity of the suspect, the person shall use an alternative
method of blind administration of the array or lineup that prevents
that person from viewing the members of the array or lineup
simultaneously with the witness or knowing the order of the
presentation of the array or lineup to the witness.
(f) All participants in a live lineup or all photographs in
a photograph array must be kept from the view of a witness before
the identification procedure begins.
(g) If multiple witnesses will view the same photograph
array or live lineup, the witnesses shall be segregated before and
during the administration of the identification procedure.
SECTION 2. (a) The Texas Commission on Law Enforcement
Officer Standards and Education shall develop, adopt, and
disseminate the model policy required by Article 38.20, Code of
Criminal Procedure, as added by this Act, not later than March 1,
2010. Each law enforcement agency in this state shall adopt the
policy required by Article 38.20, Code of Criminal Procedure, as
added by this Act, not later than September 1, 2010.
(b) Article 38.20, Code of Criminal Procedure, as added by
this Act, applies to any photograph or live lineup identification
procedure that is conducted on or after the effective date of this
Act.
SECTION 3. This Act takes effect September 1, 2009.