HB 1323
1
A bill to be entitled
2An act relating to evidence of crimes; providing a short
3title; amending s. 925.11, F.S.; providing definitions;
4providing that governmental entities are only required to
5maintain physical evidence for potential DNA testing for
6serious crimes; providing for the preservation of evidence
7in custody of governmental entities on the effective date
8of the act; providing that only the portion of a piece of
9evidence that is likely to contain biological evidence
10must be retained and other portions of that piece of
11evidence may be disposed of when the physical evidence is
12of such a size, bulk, or physical character as to render
13retention impracticable; providing that upon written
14request by the defendant in a case of serious crime, a
15governmental entity shall prepare an inventory of
16biological evidence that has been preserved; providing for
17creation of an Eyewitness Identification Task Force;
18providing definitions; providing for membership; requiring
19the task force to develop recommended guidelines for
20policies, procedures, and training with respect to the
21collection and handling of eyewitness evidence in criminal
22investigations; requiring the task force to consider
23specified policies and procedures; providing that the
24guidelines developed by the task force shall serve as the
25basis for a training program through the Criminal Justice
26Standards and Training Commission; requiring the
27Department of Law Enforcement to formulate a training
28curriculum for new and existing law enforcement officers
29using recommended guidelines by a specified date;
30requiring a report by a specified date; providing for
31minority reports; requiring that the report be posted on
32the Internet and distributed to specified parties;
33providing for termination of the task force and expiration
34of its authorizing provisions; providing an effective
35date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39 Section 1. This act may be entitled "The Enhancing Crime-
40Solving Potential and Reliability of the Criminal Justice System
41Act."
42 Section 2. Section 925.11, Florida Statutes, is amended to
43read:
44 925.11 Postsentencing DNA testing.-
45 (1) DEFINITIONS.-As used in this section, the term:
46 (a) "Biological evidence" means the contents of a sexual
47assault examination kit and any item that contains blood, semen,
48hair, saliva, skin tissue, fingernail scrapings, bone, bodily
49fluids, or other identifiable biological material that was
50collected as part of an investigation of a serious crime or that
51may reasonably be used to incriminate or exculpate any person
52for a serious crime. This includes all such material regardless
53of whether that material is catalogued separately, such as on a
54slide or swab or in a test tube, or is present on other
55evidence, including, but not limited to, clothing, ligatures,
56bedding, or other household material such as drinking cups,
57cigarettes, envelopes, or like items.
58 (b) "DNA" means deoxyribonucleic acid.
59 (c) "Governmental entity" refers to any governmental or
60public entity within the state, including any private entity
61that performs functions described in this paragraph, and any
62official or employee of such an entity, including, but not
63limited to, any law enforcement agency, prosecutor's office,
64court, crime laboratory, or other entity or individual charged
65with the collection, storage, or retrieval of biological
66evidence.
67 (d) "Serious crime" means any felony violation contained
68in any of the following provisions:
69 1. Chapter 782, entitled "Homicide."
70 2. Section 784.021, entitled "Aggravated Assault."
71 3. Section 784.041, entitled "Felony battery; domestic
72battery by strangulation."
73 4. Section 784.045, entitled "Aggravated Battery."
74 5. Section 787.01, entitled "Kidnapping; kidnapping of
75child under age 13, aggravating circumstances."
76 6. Section 787.02, entitled "False imprisonment; false
77imprisonment of child under age 13, aggravating circumstances."
78 7. Section 794.011, entitled "Sexual battery."
79 8. Section 800.04, entitled "Lewd or lascivious offenses
80committed upon or in the presence of persons less than 16 years
81of age."
82 9. Section 806.01, entitled "Arson."
83 10. Section 806.031, entitled "Arson resulting in injury
84to another; penalty."
85 11. Section 810.02, entitled "Burglary."
86 12. Section 812.13, entitled "Robbery."
87 13. Section 812.131, entitled "Robbery by sudden
88snatching."
89 14. Section 812.133, entitled "Carjacking."
90 15. Section 812.135, entitled "Home-invasion robbery."
91 (2)(1) PETITION FOR EXAMINATION.-
92 (a)1. A person who has been tried and found guilty of
93committing a felony and has been sentenced by a court
94established by the laws of this state may petition that court to
95order the examination of physical evidence collected at the time
96of the investigation of the crime for which he or she has been
97sentenced that may contain DNA (deoxyribonucleic acid) and that
98would exonerate that person or mitigate the sentence that person
99received.
100 2. A person who has entered a plea of guilty or nolo
101contendere to a felony prior to July 1, 2006, and has been
102sentenced by a court established by the laws of this state may
103petition that court to order the examination of physical
104evidence collected at the time of the investigation of the crime
105for which he or she has been sentenced that may contain DNA
106(deoxyribonucleic acid) and that would exonerate that person.
107 (b) A petition for postsentencing DNA testing under
108paragraph (a) may be filed or considered at any time following
109the date that the judgment and sentence in the case becomes
110final.
111 (3)(2) METHOD FOR SEEKING POSTSENTENCING DNA TESTING.-
112 (a) The petition for postsentencing DNA testing must be
113made under oath by the sentenced defendant and must include the
114following:
115 1. A statement of the facts relied on in support of the
116petition, including a description of the physical evidence
117containing DNA to be tested and, if known, the present location
118or the last known location of the evidence and how it was
119originally obtained;
120 2. A statement that the evidence was not previously tested
121for DNA or a statement that the results of any previous DNA
122testing were inconclusive and that subsequent scientific
123developments in DNA testing techniques would likely produce a
124definitive result establishing that the petitioner is not the
125person who committed the crime;
126 3. A statement that the sentenced defendant is innocent
127and how the DNA testing requested by the petition will exonerate
128the defendant of the crime for which the defendant was sentenced
129or will mitigate the sentence received by the defendant for that
130crime;
131 4. A statement that identification of the defendant is a
132genuinely disputed issue in the case, and why it is an issue;
133 5. Any other facts relevant to the petition; and
134 6. A certificate that a copy of the petition has been
135served on the prosecuting authority.
136 (b) Upon receiving the petition, the clerk of the court
137shall file it and deliver the court file to the assigned judge.
138 (c) The court shall review the petition and deny it if it
139is insufficient. If the petition is sufficient, the prosecuting
140authority shall be ordered to respond to the petition within 30
141days.
142 (d) Upon receiving the response of the prosecuting
143authority, the court shall review the response and enter an
144order on the merits of the petition or set the petition for
145hearing.
146 (e) Counsel may be appointed to assist the sentenced
147defendant if the petition proceeds to a hearing and if the court
148determines that the assistance of counsel is necessary and makes
149the requisite finding of indigency.
150 (f) The court shall make the following findings when
151ruling on the petition:
152 1. Whether the sentenced defendant has shown that the
153physical evidence that may contain DNA still exists;
154 2. Whether the results of DNA testing of that physical
155evidence would be admissible at trial and whether there exists
156reliable proof to establish that the evidence has not been
157materially altered and would be admissible at a future hearing;
158and
159 3. Whether there is a reasonable probability that the
160sentenced defendant would have been acquitted or would have
161received a lesser sentence if the DNA evidence had been admitted
162at trial.
163 (g) If the court orders DNA testing of the physical
164evidence, the cost of such testing may be assessed against the
165sentenced defendant unless he or she is indigent. If the
166sentenced defendant is indigent, the state shall bear the cost
167of the DNA testing ordered by the court.
168 (h) Any DNA testing ordered by the court shall be carried
169out by the Department of Law Enforcement or its designee, as
170provided in s. 943.3251.
171 (i) The results of the DNA testing ordered by the court
172shall be provided to the court, the sentenced defendant, and the
173prosecuting authority.
174 (4)(3) RIGHT TO APPEAL; REHEARING.-
175 (a) An appeal from the court's order on the petition for
176postsentencing DNA testing may be taken by any adversely
177affected party.
178 (b) An order denying relief shall include a statement that
179the sentenced defendant has the right to appeal within 30 days
180after the order denying relief is entered.
181 (c) The sentenced defendant may file a motion for
182rehearing of any order denying relief within 15 days after
183service of the order denying relief. The time for filing an
184appeal shall be tolled until an order on the motion for
185rehearing has been entered.
186 (d) The clerk of the court shall serve on all parties a
187copy of any order rendered with a certificate of service,
188including the date of service.
189 (5)(4) PRESERVATION OF EVIDENCE.-
190 (a) Governmental entities shall preserve physical evidence
191potentially containing biological evidence on which a
192postsentencing testing of DNA may be requested if that evidence
193is secured in relation to an investigation or prosecution of:
194 1. A serious crime for the period of time that the serious
195crime remains unsolved; or
196 2. A serious crime for the period of time that an
197individual is incarcerated based on a conviction for that
198serious crime and is in the custody of an evidence-holding
199agency in this state on July 1, 2010 Governmental entities that
200may be in possession of any physical evidence in the case,
201including, but not limited to, any investigating law enforcement
202agency, the clerk of the court, the prosecuting authority, or
203the Department of Law Enforcement shall maintain any physical
204evidence collected at the time of the crime for which a
205postsentencing testing of DNA may be requested.
206 (b) In a case in which the death penalty is imposed, the
207evidence shall be maintained for 60 days after execution of the
208sentence. In all other cases, a governmental entity may dispose
209of the physical evidence if:
210 1. The term of the sentence imposed in the case has
211expired and no other provision of law or rule requires that the
212physical evidence be preserved or retained; or
213 2. The physical evidence is of such a size, bulk, or
214physical character as to render retention impracticable. When
215such retention is impracticable, the governmental entity shall
216remove and preserve portions of the material evidence likely to
217contain biological evidence related to the serious crime in a
218quantity sufficient to permit future DNA testing before
219returning or disposing of the physical evidence.
220 (c) Upon written request by the defendant in a case of
221serious crime, a governmental entity shall prepare an inventory
222of biological evidence that has been preserved in connection
223with that case.
224 Section 3. Eyewitness Identification Task Force.-
225 (1) As used in this section, the term:
226 (a) "Administrator" means the person conducting a photo or
227live lineup.
228 (b) "Blind" means the administrator does not know the
229identity of the suspect.
230 (c) "Blinded" means the administrator may know who the
231suspect is, but does not know which lineup member is being
232viewed by the eyewitness.
233 (d) "Eyewitness" means a person who observes another
234person at or near the scene of an offense.
235 (e) "Filler" means either a person or a photograph of a
236person who is not suspected of an offense and is included in an
237identification procedure.
238 (f) "Live lineup" means an identification procedure in
239which a group of persons, including the suspected perpetrator of
240an offense and persons who are fillers, are displayed to an
241eyewitness for the purpose of determining whether the eyewitness
242identifies the suspect as the perpetrator.
243 (g) "Photo lineup" means an identification procedure in
244which an array of photographs, including a photograph of the
245suspected perpetrator of an offense and additional photographs
246of persons who are fillers, are displayed to an eyewitness
247either in hard copy form or via digital imaging for the purpose
248of determining whether the eyewitness identifies the suspect as
249the perpetrator.
250 (h) "Showup" means an identification procedure in which an
251eyewitness is presented with a single suspect for the purpose of
252determining whether the eyewitness identifies this individual as
253the perpetrator.
254 (2) An Eyewitness Identification Task Force shall be
255convened by the executive director of the Department of Law
256Enforcement and is composed of 10 members as follows:
257 (a) The Florida Police Chiefs Association shall appoint
258two members:
259 1. One of whom must be from a small law enforcement
260agency; and
261 2. One of whom must be from a large law enforcement agency
262accredited by the Commission on Accreditation for Law
263Enforcement Agencies.
264 (b) The Florida Sheriffs Association shall appoint one
265member.
266 (c) The Attorney General shall appoint one member, who
267must be an attorney who represents the state in the prosecution
268of felonies and is a member of the Florida Prosecuting Attorneys
269Association.
270 (d) The executive director of the Department of Law
271Enforcement shall appoint one member who is actively involved in
272the development of the department's curricula.
273 (e) The Chief Justice of the Supreme Court shall appoint
274one member, who must be a member of the judiciary.
275 (f) The Chancellor of the State University System shall
276appoint two members:
277 1. One of whom must be a law professor; and
278 2. One of whom must be a professor of psychology with
279experience in research related to memory.
280 (g) The Florida Public Defender Association shall appoint
281one member, who must be a criminal defense lawyer.
282 (h) The executive director of the Innocence Project of
283Florida or his or her designee shall be a member.
284 (3) The task force members, in consultation with
285eyewitness identification practitioners and experts, shall
286develop recommended guidelines for policies, procedures, and
287training with respect to the collection and handling of
288eyewitness evidence in criminal investigations by law
289enforcement agencies in the state that are shown by reliable
290evidence to enhance the accuracy of eyewitness identification.
291 (4) The task force shall consider the following policies
292and practices to enhance the accuracy and reliability of
293eyewitness evidence, including, without limitation:
294 (a) Employing a blind or blinded administrator in the
295administration of live and photo lineups.
296 (b) Issuing specific instructions to the eyewitness before
297and during the live or photo lineup or showup, which may
298include:
299 1. That the perpetrator may or may not be among the
300persons in the identification procedure or, in the case of a
301showup, may or may not be the person that is presented to the
302eyewitness.
303 2. That the administrator does not know who the
304perpetrator is.
305 3. That the eyewitness should not feel compelled to make
306an identification.
307 4. That the investigation will continue whether or not an
308identification is made.
309 5. That the procedure requires the administrator to ask
310the eyewitness to state, in his or her own words, how certain he
311or she is of any identification.
312 6. That the eyewitness not discuss the identification
313procedure or its results with other eyewitnesses involved in the
314case or contact the media.
315 (c) In a photo lineup, ensuring that the photograph of the
316suspect is contemporary and resembles the suspect's appearance
317at the time of the offense.
318 (d) Using four or more fillers in live lineups and five or
319more fillers in photo lineups and ensuring that those fillers
320generally resemble the eyewitness's description of the
321perpetrator.
322 (e) Using only one suspect in any live or photo lineup and
323ensuring that the suspect does not unduly stand out from the
324fillers.
325 (f) Using different fillers in successive lineups
326administered for the same eyewitness when new suspects are
327introduced.
328 (g) Presenting separate photo and live lineups when there
329are multiple eyewitnesses, while ensuring the same suspect is
330placed in a different position for each identification
331procedure.
332 (h) Taking measures to avoid communication about the
333identity of the suspect to the eyewitness and ensuring that
334communication among multiple eyewitnesses is prevented.
335 (i) Presenting members of photo and live lineups one at a
336time.
337 (j) Assessing the circumstances under which a showup is
338warranted and the attendant measures that should be undertaken
339to prevent or reduce suggestibility.
340 (k) Determining when the administrator should record the
341eyewitness's statement of confidence in his or her selection in
342the live or photo lineup or showup procedure.
343 (l) Refraining from providing any confirmatory information
344to the eyewitness.
345 (m) Producing a video or audio recording of the photo or
346live lineup, showup, or other procedure.
347 (5) Such guidelines shall also provide the basis for a
348training program through the Criminal Justice Standards and
349Training Commission, which shall devise a curriculum adopting
350those recommended policies and procedures for law enforcement
351agencies in the this state.
352 (6) The task force shall establish guidelines for
353eyewitness identification procedures pursuant to subsections
354(1)-(5) by October 1, 2011.
355 (7) The Department of Law Enforcement shall formulate a
356training curriculum for new and existing law enforcement
357officers that comprises the recommended guidelines established
358pursuant to subsections (1)-(5) by June 30, 2012.
359 (8) The task force shall submit a report on the guidelines
360developed and recommendations concerning their use by October 1,
3612011. Minority reports may also be issued. These reports shall
362be posted on the state's official website and presented to the
363Governor, the Chief Justice of the Supreme Court, the President
364of the Senate, the Speaker of the House of Representatives, and
365the standing committees of the Legislature having oversight
366jurisdiction of matters relating to criminal law and procedures.
367The task force shall terminate on the date that it submits such
368report or October 1, 2011, whichever is earlier, and this
369section expires on that date.
370 Section 4. This act shall take effect July 1, 2010.
CODING: Words stricken are deletions; words underlined are additions.