HR115

WHEREAS, the goal of a police investigation is to apprehend the person or persons responsible for the commission of a crime; and

WHEREAS, mistaken eyewitness identification has been shown to have contributed to a significant number of convictions that were eventually exonerated; and

WHEREAS, over the past 30 years, a large body of peer-reviewed, scientific research and practice has emerged showing that simple systematic changes in administering eyewitness investigation procedures can greatly improve the accuracy of those investigations; and

WHEREAS, more accurate eyewitness identifications increase the ability of police and prosecutors to convict the guilty and protect the innocent; and

WHEREAS, the value of properly preserved biological evidence has been enhanced by the discovery of modern deoxyribonucleic acid (DNA) testing methods which, coupled with a comprehensive system of DNA databases that store crime scene and offender profiles, allow law enforcement to improve its crime-solving potential; and

WHEREAS, tapping the potential of preserved biological evidence requires the proper identification, collection, preservation, storage, cataloguing, and organization of such evidence; and

WHEREAS, according to law enforcement agencies, "cold" case investigations are hindered by an inability to access biological evidence that was collected in connection with criminal investigations; and

WHEREAS, failure to update preservation policies squanders valuable law enforcement resources, manpower hours, and storage space; and

WHEREAS, simple but crucial enhancements to protocols for properly preserving biological evidence can solve old crimes, enhance public safety, and settle claims of innocence; and

WHEREAS, to make improvements in administering eyewitness investigation procedures and update biological evidence preservation policies, a study on the measures to be implemented is necessary; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-fourth Legislature of the State of Hawaii, Regular Session of 2008, that a task force be established by the Attorney General to study and develop recommended guidelines for policies, procedures, and training protocol to improve the accuracy of eyewitness identifications and make better use of biological evidence in criminal investigations by law enforcement agencies, including procedures for the administration of live and photo lineups and showups, demonstrated to increase the accuracy of eyewitnesses identifications; and

BE IT FURTHER RESOLVED that the task force consist of nine members designated as follows:

(1) Two members selected by the Attorney General:

(A) One of whom shall be a prosecutor; and

(B) One of whom shall be a criminal defense attorney;

(2) Three members selected by the governor:

(A) One of whom shall have experience in evidence handling, collection, and retention;

(B) One of whom shall be a representative from a victims' rights organization; and

(3) Two members appointed by the Speaker of the House of Representatives; and

(4) Two members appointed by the President of the Senate;

and

BE IT FURTHER RESOLVED that the task force is requested to recommend whether the following action should be taken:

(1) Employing a blind administrator in the administration of live and photo lineups;

(2) Issuing specific instructions to the eyewitness before and during the live or photo lineup or showup, which may include:

(A) That the perpetrator may or may not be among the persons in the identification procedure or, in the case of a showup, may or may not be the person that is presented to the eyewitness;

(B) That the administrator does not know who the perpetrator is;

(D) That the investigation will continue whether or not an identification is made;

(E) That the procedure requires the administrator to ask the eyewitness to state, in the eyewitness's own words, how certain the eyewitness is of any identification; and

(F) That the eyewitness not to discuss the identification procedure or its results with other eyewitnesses involved in the case and discouraging contact with the media;

(3) In a photo lineup, ensuring that the photograph of the suspect is contemporary and resembles the suspect's appearance at the time of the offense;

(4) Using four or more fillers in live lineups and five or more fillers in photo lineups and ensuring that those fillers generally resemble the eyewitness's description of the perpetrator;

(5) Using only one suspect in any live or photo lineup and ensuring that the suspect does not unduly stand out from the fillers;

(6) Using different fillers in successive lineups administered for the same eyewitness when new suspects are introduced;

(7) Presenting separate photo and live lineups when there are multiple eyewitnesses, while ensuring the same suspect is placed in a different position for each identification procedure;

(8) Taking measures to avoid communication about the identity of the suspect to the eyewitness and ensuring communication among multiple eyewitnesses is prevented;

(9) Presenting photo and live lineup members one at a time;

(10) Assessing the circumstances under which a showup is warranted;

(11) Ensuring that, if there are multiple eyewitnesses, only one eyewitness at a time participates in the showup procedure and that:

(A) Only one of the eyewitnesses be present at the location of the showup procedure; and

(B) If a positive identification is made, and an arrest is justified, additional eyewitnesses be shown live or photo lineups;

(12) If there are multiple suspects and a showup procedure is warranted, separating these suspects and subjecting them to separate showup procedures;

(13) Bringing the eyewitness to a neutral, non-law enforcement location where the suspect is being detained for a showup procedure;

(14) Avoiding the restraint of the suspect during the course of a showup procedure;

(15) Avoiding removing the suspect from a law enforcement squad vehicle during the course of a showup procedure;

(16) Determining the amount of time that should be allowed to elapse between the commission of a crime and the administration of a showup procedure;

(17) Determining when the administrator should record the eyewitness's statement of confidence in the eyewitness's selection in the live or photo lineup or showup procedure;

(18) Refraining from providing any confirmatory information to the eyewitness;

(19) Making a video or audio recording of the live or photo lineup, or showup procedure; and

(20) Determining what training, if any, should be made available to law enforcement personnel in the use of the live or photo lineup, and showup procedure;

and

BE IT FURTHER RESOLVED that the task force is requested to recommend:

(1) Statewide standards regarding proper identification, collection, preservation, storage, cataloguing, and organization of biological evidence;

(2) Essential components of training programs for law enforcement officers and other relevant employees who are charged with preserving and retrieving biological evidence regarding the methods and procedures referenced in paragraph (1);

(3) Protocol for the creation of a centralized tracking system through which laboratories, facilities, and other related entities may locate biological evidence connected to felony cases relating to:

(A) The retrieval of biological evidence for cases that have already resulted in felony convictions; and

(B) The retrieval of biological evidence for unsolved felony cases;

and

(4) Practices, protocols, models, and resources for the cataloguing and accessibility of preserved biological evidence already in the possession of local, county, and state entities that preserve such evidence;

and

BE IT FURTHER RESOLVED that the task force is requested to submit a report of its findings and recommendations, including proposed legislation, if any, to the Legislature no later than 20 days prior to the convening of the Regular Session of 2010; and

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Police Chief of the Police Department of each County, the Governor, and the Attorney General of the State of Hawaii.

	OFFERED BY:	_____________________________

Report Title:

Task force; eyewitness identification; biological evidence

HOUSE OF REPRESENTATIVES	H. R. NO.	115
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII