By: Ellis, Carona, Hinojosa S.B. No. 121
(In the Senate - Filed November 8, 2010; January 31, 2011,
read first time and referred to Committee on Criminal Justice;
March 7, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; March 7, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 121 By: Ellis
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. In this article, "institute" means the Bill
Blackwood Law Enforcement Management Institute of Texas located at
Sam Houston State University.
Sec. 2. This article applies only to a law enforcement
agency of this state or of a county, municipality, or other
political subdivision of this state that employs peace officers who
conduct photograph or live lineup identification procedures in the
routine performance of the officers' official duties.
Sec. 3. (a) Each law enforcement agency shall adopt,
implement, and as necessary amend a detailed written policy
regarding the administration of photograph and live lineup
identification procedures in accordance with this article. A law
enforcement agency may adopt:
(1) the model policy adopted under Subsection (b); or
(2) the agency's own policy that, at a minimum,
conforms to the requirements of Subsection (c).
(b) The institute, in consultation with large, medium, and
small law enforcement agencies and with law enforcement
associations, scientific experts in eyewitness memory research,
and appropriate organizations engaged in the development of law
enforcement policy, shall develop, adopt, and disseminate to all
law enforcement agencies in this state a model policy and
associated training materials regarding the administration of
photograph and live lineup identification procedures. The
institute shall provide for a period of public comment before
adopting the policy and materials.
(c) The model policy or any other policy adopted by a law
enforcement agency under Subsection (a) must:
(1) be based on:
(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; and
(C) other relevant information as appropriate;
and
(2) address the following topics:
(A) the selection of photograph and live lineup
filler photographs or participants;
(B) instructions given to a witness before
conducting a photograph or live lineup identification procedure;
(C) the documentation and preservation of
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 manner
consistent with other proven or supported best practices designed
to prevent opportunities to influence the witness; and
(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.
Sec. 4. (a) Not later than December 31 of each
odd-numbered year, the institute shall review the model policy and
training materials adopted under this article and shall modify the
policy and materials as appropriate.
(b) Not later than September 1 of each even-numbered year,
each law enforcement agency shall review its policy adopted under
this article and shall modify that policy as appropriate.
Sec. 5. (a) Any evidence or expert testimony presented by
the state or the defendant on the subject of eyewitness
identification is admissible only subject to compliance with the
Texas Rules of Evidence. Evidence of compliance with the model
policy or any other policy adopted under this article or with the
minimum requirements of this article is not a condition precedent
to the admissibility of an out-of-court eyewitness identification.
(b) Notwithstanding Article 38.23 as that article relates
to a violation of a state statute, a failure to conduct a photograph
or live lineup identification procedure in substantial compliance
with the model policy or any other policy adopted under this article
or with the minimum requirements of this article does not bar the
admission of eyewitness identification testimony in the courts of
this state.
SECTION 2. (a) Not later than December 31, 2011, the Bill
Blackwood Law Enforcement Management Institute of Texas shall
develop, adopt, and disseminate the model policy and associated
training materials required under Article 38.20, Code of Criminal
Procedure, as added by this Act.
(b) Not later than September 1, 2012, each law enforcement
agency to which Article 38.20, Code of Criminal Procedure, as added
by this Act, applies shall adopt a policy as required by that
article.
(c) The change in law made by Section 5, Article 38.20, Code
of Criminal Procedure, as added by this Act, applies only to a
photograph or live lineup identification procedure conducted on or
after September 1, 2012, regardless of whether the offense to which
the procedure is related occurred before, on, or after September 1,
2012.
SECTION 3. This Act takes effect September 1, 2011.
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