Report Title:
Eyewitness Identification Procedures; Rights of Accused
Description:
Reforms eyewitness identification procedures to better protect Hawaii's citizens and promote greater accuracy in identifying criminal suspects and less faulty identifications.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1748 |
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TWENTY-THIRD LEGISLATURE, 2005 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO RIGHTS OF THE ACCUSED.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The goal of a police investigation is to apprehend the person or persons responsible for committing a crime. Recent studies have confirmed that present eyewitness identification procedures may lead to faulty eyewitness identification. However, studies of modern eyewitness identification procedures indicate that the criminal justice system can significantly decrease the rate of erroneous eyewitness identification by implementing changes to identification procedures. As a result, decreased erroneous eyewitness identification will increase the ability of police and prosecutors to convict the guilty and protect our communities.
The National Institute of Justice recommends the adoption of new policies and procedures which are readily available and have proven effective in other jurisdictions. Accordingly, the legislature believes that the adoption of the following procedures will provide Hawaii’s citizens greater protection against faulty identification and assist law enforcement agencies with the capture of the perpetrators of crimes in our community.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
PROCEDURES FOR EYEWITNESS IDENTIFICATION
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
"Eyewitness" means a person who observes another person at or near the scene of an offense.
"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.
"Identification procedure" means either a photo lineup or a live lineup.
"Investigator" means the person conducting the live or photo lineup.
"Lineup" means a live lineup or a photo lineup.
"Live lineup" means a procedure in which a group of persons, including the person suspected as the perpetrator of an offense and fillers, is displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
"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 fillers, is displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.
§ -2 Eyewitness identification procedures. Not later than January 1, 2006, each county police department and all state investigative agencies shall adopt procedures to conduct lineups that comply with the following requirements:
(1) When practicable, the investigator shall be a person who is not aware of which person in the lineup is suspected as the perpetrator of the offense;
(2) When it is not practicable for the investigator to be a person who is unaware of which person in the lineup is suspected as the perpetrator of the offense:
(A) The lineup will be presented simultaneously, not sequentially; and
(B) The investigator will state in writing the reason that presentation of the lineup was not made by a person who was not aware of which person in the lineup was suspected as the perpetrator of the offense;
(3) The eyewitness shall be instructed prior to the identification procedure:
(A) That the perpetrator may not be among the persons in the lineup; and
(B) That the eyewitness should not feel compelled to make an identification;
(4) When administering a lineup in sequence rather than simultaneously, the eyewitness shall be instructed prior to the identification procedure that:
(A) Each photograph or person will be viewed one at a time;
(B) The photographs or persons will 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; and
(D) All photographs or persons will be shown to the eyewitness, even if an identification is made before all have been viewed;
(5) The lineup shall be composed so that the fillers generally fit the description of the person suspected as the perpetrator and, in the case of a photo lineup, so that the photograph of the person suspected as the perpetrator resembles his or her appearance at the time of the offense and does not unduly stand out;
(6) If the eyewitness has previously viewed a lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the person suspected as the perpetrator participates shall be different from the fillers used in any prior lineups;
(7) At least five fillers shall be included in a photo lineup and at least four fillers shall be included in a live lineup, in addition to the person suspected as the perpetrator;
(8) In a photo lineup, no writings or other information concerning any previous arrest of the person suspected as the perpetrator shall be visible to the eyewitness;
(9) In a live lineup, any identifying actions, such as speaking or making gestures or other movements, shall be performed by all lineup participants;
(10) In a live lineup, all lineup participants shall be out of the view of the eyewitness at the beginning of the identification procedure;
(11) The person suspected as the perpetrator shall be the only suspected perpetrator included in the identification procedure;
(12) Nothing shall be said to the eyewitness regarding the position in the photo lineup or the live lineup of the person suspected as the perpetrator, except as otherwise provided in subsection (4);
(13) Nothing shall be said to the eyewitness that might influence the eyewitness's selection of the person suspected as the perpetrator;
(14) The investigator shall seek, in the eyewitness’s own words, his or her confidence level that the person or persons identified in the lineup is the suspect;
(15) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning such person prior to completion of the eyewitness's statement that he or she is certain of the selection; and
(16) A written record of the identification procedure shall be made that includes the following information:
(A) All results indicating identification or the inability to identify a person as the perpetrator obtained during the identification procedure, signed by the eyewitness, including the eyewitness's own words regarding how certain he or she is of the selection;
(B) The names of all persons present at the identification procedure;
(C) The date and time of the identification procedure;
(D) In a live or photo lineup where the subjects were presented sequentially as opposed to simultaneously, the order in which the photographs or persons were displayed to the eyewitness;
(E) In a photo lineup, the photographs themselves;
(F) In a photo lineup, identification information and the sources of all photographs used; and
(G) In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.
§ -3 Remedies for noncompliance. (a) Evidence of a failure to comply with any of the provisions of this chapter shall be considered by the trial courts in adjudicating motions to suppress eyewitness identification.
(b) Evidence of a failure to comply with any of the provisions of this chapter shall be admissible at trial or other hearings in support of claims of eyewitness misidentification as long as such evidence is otherwise admissible.
(c) When evidence of a failure to comply with any of the provisions of this chapter has been presented at trial, the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of eyewitness identifications.
§ -4 Training of law enforcement officers. The attorney general shall create, administer, and conduct training programs for law enforcement officers and recruits on the methods and technical aspects of the eyewitness identification practices and procedures within this chapter."
SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2005-2006 and the same sum or so much thereof as may be necessary for fiscal year 2006-2007 for training programs related to eyewitness identification practices and procedures.
The sums appropriated shall be expended by the department of the attorney general for the purposes of this Act.
SECTION 4. This Act shall take effect upon its approval; provided that section 3 shall take effect on July 1, 2005.
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INTRODUCED BY: |
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