Bill Text: HI HB1744 | 2020 | Regular Session | Amended
Bill Title: Relating To Eyewitness Identification.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2020-03-16 - The hearing on this measure has been cancelled until further notice. [HB1744 Detail]
Download: Hawaii-2020-HB1744-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1744 |
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THIRTIETH LEGISLATURE, 2020 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO EYEWITNESS IDENTIFICATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Act 281, Session Laws of Hawaii 2019, is amended by amending section 2 to read as follows:
"SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
EYEWITNESS
IDENTIFICATION PROCEDURES
§ -1 Definitions. As used in this chapter, unless the context
clearly requires otherwise:
"Administrator" means the person
conducting the photo lineup, live lineup, or showup
for law enforcement.
"Blind" means the administrator
does not know the identity of the suspect in the identification procedure.
"Blinded" means the administrator may know who the suspect is, but by virtue of the use of procedures or technology, does not know which lineup member is being viewed by the eyewitness.
"Contamination" means the alteration, replacement, or impairment of an eyewitness' memory of a person or event as a result of exposure to extrinsic information related to that person or event.
"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" means the identification by the eyewitness of a specific person as the possible perpetrator.
"Identification procedure" means a live lineup, a photo lineup, or a showup.
"Law enforcement" means any law enforcement entity conducting an investigation.
"Live lineup" means an identification procedure in which a group of persons, including the suspect and other persons acting as fillers, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the possible perpetrator.
"Photo lineup"
means an identification procedure in which an array of photographs, including a
photograph of the suspect and additional photographs of other persons not
suspected of the offense, is displayed to an eyewitness either in hard copy
form or via computer or other electronic means for the purpose of determining whether
the eyewitness identifies the suspect as the possible perpetrator.
"Showup" means an identification procedure in which an eyewitness is presented in-person with a single suspect for the purpose of determining whether the eyewitness identifies this individual as the possible perpetrator.
"Suspect" means the person believed by law enforcement to be the possible perpetrator of the crime.
§ -2 Eyewitness identification procedures for live lineups and photo lineups. (a) Any law enforcement entity conducting eyewitness identification procedures shall adopt specific procedures for conducting photo lineups and live lineups that comply with the following requirements:
(1) [Prior to] Before
a photo lineup or live lineup, law enforcement shall record in writing as
complete a description as possible of the possible perpetrator provided by the
eyewitness in the eyewitness' own words.
This statement shall also include information regarding the conditions
under which the eyewitness observed the possible perpetrator including
location, time, distance, obstructions, lighting, weather conditions, and other
impairments, including but not limited to alcohol, drugs, stress, and visual or
auditory disabilities;
(2) The eyewitness
shall [also] be asked if the eyewitness' vision needs correction by
glasses or contact lenses and whether the eyewitness was wearing them at the
time of the offense. The administrator
shall note whether the eyewitness was wearing glasses or contact lenses at the
time of the identification procedure;
(3) All live lineups and photo lineups shall be conducted blind unless to do so would place an undue burden on law enforcement or the investigation; and
(4) The eyewitness
shall be instructed, without other eyewitnesses present, [prior to] before
any live lineup or photo lineup, that:
(A) The suspect may or may not be among the persons in the identification procedure;
(B) The administrator does not know the
identity of the suspect, if applicable;
(C) The
eyewitness should not feel compelled to make an identification;
(D) The
investigation will continue whether or not an identification is made;
(E) The
procedure requires the administrator to ask the eyewitness to make a statement,
in the eyewitness' own words, if the eyewitness makes an identification; and
(F) Speaking
with other witnesses or the media may hinder prosecution.
(b) The administrator shall comply with the following:
(1) In a photo lineup,
any photograph of the suspect [shall be contemporary and] shall resemble
the suspect's appearance at the time of the offense;
(2) In a photo lineup, to the extent practicable, there shall be no characteristics of the photographs themselves or the background context in which they are placed that makes any of the photographs unduly stand out;
(3) A photo lineup or live lineup shall be composed so that the fillers generally resemble the eyewitness' description of the possible perpetrator, while ensuring that the suspect does not unduly stand out from the fillers;
(4) In a photo lineup or live lineup, the administrator shall comply with the following:
(A) All fillers selected shall resemble the eyewitness' description of the possible perpetrator in significant features including but not limited to face, weight, build, and skin tone;
(B) At least five fillers
shall be included in a photo lineup in addition to the suspect;
(C) At
least four fillers shall be included in a live lineup in addition to the
suspect; and
(D) If
the eyewitness has previously viewed a photo lineup or live lineup in
connection with the identification of another person suspected of involvement
in the offense, the fillers in the lineup in which the instant suspect
participates shall be different from the fillers used in any prior lineups;
(5) In a live lineup,
no identifying actions, such as [speech,] gestures[,] or other
movements, shall be performed by lineup participants;
(6) In a live lineup,
all lineup participants shall be out of view of the eyewitness [prior to]
before the identification procedure;
(7) In a photo lineup or live
lineup, nothing shall be said to the eyewitness regarding the suspect's
position in the lineup; and
(8) In a photo lineup or live lineup, nothing shall be said to the eyewitness that might influence the eyewitness' identification of any particular lineup member.
(c) If there are multiple eyewitnesses, the administrator shall comply with the following:
(1) Each eyewitness shall view photo lineups or live lineups separately;
(2) The
suspect shall be [randomly positioned] permitted to select their
position in the live lineup or photo lineup for each eyewitness; and
(3) The eyewitnesses shall not be permitted to communicate with each other until all identification procedures have been completed.
(d)
In any identification procedure, no writings or information concerning [the
current investigation or] any previous arrest, indictment, or conviction of
the suspect shall be visible or made known to an eyewitness.
(e) When there are multiple suspects, each identification procedure shall include only one suspect.
(f)
In any identification
procedure where an eyewitness makes an identification, the administrator shall
seek and document a clear statement from the eyewitness of the eyewitness'
confidence in the identification at the time of the identification in the eyewitness' own words.
(g)
In any identification procedure where an eyewitness makes an
identification, the eyewitness shall not be provided with any information
concerning the person identified before the administrator obtains the
eyewitness' statement about the identification.
(h)
Law enforcement shall make a record of each identification procedure,
including all identification and non-identification results obtained,
undertaken during all investigations.
Each identification procedure record shall be signed by the relevant
eyewitness.
(i) When
it is impracticable for a blind administrator to conduct a lineup, the
investigator shall state in writing, in the identification procedure record,
the reason therefor.
§ -3 Eyewitness identification procedures for showups.
(a) The administrator shall comply with the following in conducting
a showup:
(1) [Where
possible,] Except as provided in this subsection, the administrator
shall perform a live lineup or photo lineup instead of a showup;
(2) A showup
shall only be performed using a live suspect and only in exigent circumstances [that
require the immediate display of a suspect to an eyewitness;]. For purposes of this paragraph, "exigent
circumstances" means circumstances that involve the temporary detention or
arrest of a suspect at or near the scene of an offense, or during the suspect's
flight therefrom, pending procedures that attempt to verify the identity of the
suspect;
[(3) All showups shall be conducted blind unless to do so would
place an undue burden on law enforcement or the investigation;
(4)] (3) An administrator shall not conduct a showup with a photograph[. If investigators wish to determine if an
eyewitness can make an identification using a photograph, a photo lineup shall
be used;] unless the suspect is someone
already familiar to the eyewitness, including a spouse, partner, child,
relative, coworker, or neighbor;
[(5) Prior
to any showup, law enforcement shall record in
writing as complete a description as possible of the possible perpetrator
provided by the eyewitness in the eyewitness' own words. This record shall also include information
regarding the conditions under which the eyewitness observed the possible perpetrator
including location, time, distance, obstructions, lighting, weather conditions,
and other impairments including but not limited to alcohol, drugs, stress, and
visual or auditory disabilities;
(6)] (4) The
eyewitness shall also be asked if the eyewitness' vision needs correction by glasses
or contact lenses and whether the eyewitness was wearing them at the time of witnessing
the offense. The administrator shall
note whether the eyewitness was wearing glasses or contact lenses at the time
of the identification procedure;
[(7)] (5) The
eyewitness shall be [transported to a neutral, non-law enforcement] escorted
to the location where the suspect is being detained for the purposes of a showup;
[(8)] (6) The
eyewitness shall be instructed, without other eyewitnesses present, [prior
to] before any showup that:
(A) The suspect may or may not be the person that is presented to the eyewitness;
(B) The administrator does not know the
identity of the suspect, if applicable;
(C) The
eyewitness should not feel compelled to make an identification;
(D) The
investigation will continue whether or not an identification is made;
(E) The
procedure requires the administrator to ask the eyewitness to make a statement,
in the eyewitness' own words, if the eyewitness makes an identification; and
(F) Speaking with other witnesses or the media may
hinder prosecution.
(b) At any showup, in order to reduce potentially damaging or prejudicial inferences that may be drawn by the eyewitness, the administrator shall:
(1) Refrain from suggesting, through statements or nonverbal conduct, that the suspect is or may be the perpetrator of the crime;
(2) Refrain from removing the
suspect from a squad car in front of the eyewitness; and
(3) When
practicable, present the suspect to the eyewitness without handcuffs.
(c)
When there are multiple eyewitnesses, [the following procedure shall
apply:
(1) Only] only
one eyewitness at a time shall
be present at [the location of] the showup [to
participate in the showup; and
(2) If a positive
identification is made and an arrest is justified, subsequent eyewitnesses
shall be shown live lineups or photo lineups].
(d) If there are multiple suspects, the suspects shall be separated and participate in separate showups.
(e)
If an eyewitness makes an identification, the administrator shall seek
and document a clear statement from the eyewitness[,] of the eyewitness' confidence in the
identification at the time of the identification and in the
eyewitness' own words.
(f) The administrator shall photograph each suspect or cause the suspect to be photographed at the time and place of the showup to preserve a record of the appearance of the suspect at the time of the showup.
(g) When it is impracticable for a blind administrator to conduct a showup, the investigator shall state in writing the reason therefor.
§ -4 Video record of identification procedures; impracticability; alternative record. (a) Unless impracticable, a video record of each identification procedure shall be made that includes the following information:
(1) All identification and non-identification results obtained during the identification procedure, signed by each eyewitness;
(2) The names of all persons
present at the identification procedure, including the name of the
administrator and whether the administrator was blind, blinded, or non-blind;
(3) If
an administrator other than a blind administrator was used, the reason therefor;
(4) The
date and time of the identification procedure;
(5) In
a photo lineup or live lineup, any eyewitness identifications of fillers; and
(6) In
a photo lineup or live lineup, the names of the lineup members and other
relevant identifying information, and the sources of all photographs or persons
used in the lineup.
(b) If a video record of the identification procedure is impracticable, the administrator shall document the reason therefor, and an audio record of the identification procedure shall be made. The audio record shall be supplemented by the following:
(1) All of the photographs used in a photo lineup; and
(2) Photographs of all of the individuals used in a live lineup or showup.
[(c)
If both a video and audio record of the identification procedure
are impracticable, the administrator shall document in writing the reason
therefor, and a written record of the identification procedure shall be
made. The written record shall be
supplemented by the following:
(1) All of the
photographs used in a photo lineup; and
(2) Photographs of
all of the individuals used in a live lineup or showup.]
§ -5 Training by law enforcement entities. Law enforcement entities shall include in their training programs for law enforcement officers and recruits information on the methods, technical aspects, and scientific findings regarding the basis of the eyewitness identification practices and procedures referenced in this chapter.
§ -6
Noncompliance. (a) Noncompliance with the requirements imposed by
this chapter does not require the exclusion of eyewitness identification
evidence.
(b)
An impermissibly suggestive eyewitness
identification procedure alone does not require the exclusion of identification
evidence.
(c)
No eyewitness identification shall be deemed inadmissible in any trial,
hearing, or other proceeding in any court of this State unless a court determines
that the identification lacks sufficient reliability, under the totality of the
circumstances, to be admissible in evidence."
SECTION 2. Act 281, Session Laws of Hawaii 2019, is amended by amending section 4 to read as follows:
"SECTION 4. This Act shall take effect on [June 1,
2020.] September 1, 2020."
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect on July 1, 2050.
Report Title:
Honolulu Prosecuting Attorney Package; Criminal Procedure; Eyewitness Identification
Description:
Amends Act 281, Session Laws of Hawaii 2019 (Act 281), to provide clarification and flexibility in eyewitness identification procedures. Amends the effective date of Act 281 to 9/1/2020. Takes effect on 7/1/2050. (HD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
