Bill Text: MO HB575 | 2013 | Regular Session | Introduced
Bill Title: Changes the laws regarding criminal procedure as it relates to obtaining and using eyewitness identification testimony, in-custody informant testimony, and the identification, collection, and preservation of biological evidence
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2013-02-20 - Referred: Crime Prevention and Public Safety(H) [HB575 Detail]
Download: Missouri-2013-HB575-Introduced.html
FIRST REGULAR SESSION
97TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES HIGDON (Sponsor), ELLINGER, PIERSON AND KELLY (45) (Co-sponsors).
1549L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 547.035, 547.037, 590.700, and 650.056, RSMo, and to enact in lieu thereof nine new sections relating to criminal procedure.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 547.035, 547.037, 590.700, and 650.056, RSMo, are repealed and nine new sections enacted in lieu thereof, to be known as sections 491.500, 545.275, 545.365, 547.035, 547.037, 590.700, 650.056, 650.070, and 650.075, to read as follows:
491.500. 1. As used in this section, the following terms shall mean:
(1) "Administrator", the person conducting the photograph or live lineup;
(2) "Blind administrator", an administrator who does not know the identity of the suspect;
(3) "Blinded administrator", an administrator who may know which lineup member is the suspect but does not know which lineup member is being viewed by the eyewitness;
(4) "Eyewitness", a person who observes another person at or near the scene of an offense;
(5) "Filler", a person, or photograph of a person, who is not suspected of an offense and is included in an identification procedure;
(6) "Live lineup", an identification procedure in which a group of persons, including the suspected perpetrator of an offense and other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator;
(7) "Photo lineup", an identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator;
(8) "Show up", an identification procedure in which an eyewitness is presented with a single suspect for the purpose of determining whether the eyewitness identifies such individual as the perpetrator;
(9) "Suspect", the person believed by law enforcement to be the possible perpetrator of the crime.
2. By January 1, 2014, any law enforcement agency conducting one or more of the identification procedures listed in subsection 1 of this section shall adopt written rules governing the procedures. Each agency shall provide a copy of its written rules to the director of the department of public safety by February 1, 2014. Each agency shall thereafter complete a review of its rules every two years to determine whether new evidence in identification procedures has emerged that would support revising the rules. The agency shall resubmit its rules after completing its biennial review no later than February first of each even-numbered year.
3. In developing and revising rules under this section, a law enforcement agency shall adopt practices shown by reliable evidence to enhance the accuracy of identification procedures and minimize mistaken identifications.
4. The written rules shall include, but not be limited to, the following:
(1) A requirement that only a blind or blinded administrator shall perform a live or photo lineup;
(2) A list of instructions that shall be given to the eyewitness to minimize the likelihood of an inaccurate identification. The instructions shall include that the suspect may not be in the lineup, that the administrator does not know if the suspect is in the lineup, that the eyewitness does not need to identify anyone, and that if the eyewitness does make an identification during the procedure, the eyewitness will be required to give a recorded statement regarding his or her confidence level in the identification;
(3) A requirement for a minimum of five fillers to appear in each photo or live lineup and a requirement that all fillers generally resemble the suspect, so the suspect does not unduly stand out;
(4) A requirement that each individual or photo in a lineup procedure be presented to the witness individually in a sequential order that is previously determined, with no two individuals or photos appearing before the witness at the same time;
(5) Prohibitions on reusing fillers in lineups viewed by the same eyewitness and allowing an eyewitness to participate in multiple lineups that include the same suspect;
(6) A prohibition on allowing more than one suspect to be present, or have his or her photograph present, at a lineup;
(7) A requirement, where practicable, to video or digitally record the entirety of a photo or live lineup procedure. If videotaping or digital video recording is not practicable, a photograph shall be taken of each lineup and a detailed record made as soon as possible and without undue delay that describes, with specificity, how the entire procedure was administered, the appearance of the fillers and the suspect, and that details the identities of everyone present;
(8) A requirement that the eyewitness, at the time of the lineup and in the eyewitness's own words, give a video or audio recorded statement to the administrator regarding the eyewitness's confidence level that the person identified is the person who committed the crime;
(9) Steps to minimize factors that influence an eyewitness to identify a suspect or overstate his or her confidence level in identifying a suspect, including verbal or nonverbal reactions of the administrator;
(10) A prohibition on the administrator providing any feedback about an eyewitness' identification at any time;
(11) A list of the circumstances under which a show up is warranted that are limited to circumstances in which the police could not conduct a photo or live lineup because the police lacked probable cause to make an arrest or as a result of other exigent circumstances; and
(12) Requirements for show up procedures to ensure that the procedure is not conducted in a location or manner that implicitly conveys to the witness that the suspect is guilty.
5. All written department eyewitness identification rules shall be made available to the public upon request.
6. The requirements of subsection 4 of this section shall not prohibit a law enforcement agency from adopting other scientifically accepted procedures for conducting identification procedures that the scientific community considers more effective.
7. All of the following shall be available as consequences of compliance or noncompliance with the requirements of this section:
(1) Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress eyewitness identification under section 545.275;
(2) Failure to comply with any of the requirements of this section shall be admissible in support of claims of eyewitness misidentification, as long as such evidence is otherwise admissible;
(3) When evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications.
545.275. 1. In order to obtain a pretrial hearing on a motion to suppress evidence obtained during a live or photo lineup or show up procedure, the defendant shall produce evidence of suggestiveness within the procedure that could lead to a mistaken identification. The burden then shifts to the state to prove that the identification is reliable.
2. To evaluate whether there is evidence of suggestiveness in order to hold a hearing, the judge shall consider the following:
(1) Whether the law enforcement agency complied with written eyewitness identification procedures adopted under section 491.500 and the extent to which such procedures comply with the provisions of subsection 4 of section 491.500;
(2) Whether the eyewitness spoke to anyone besides the law enforcement agency about the identification;
(3) Whether the eyewitness made no choice or chose a different suspect or filler during an identification procedure; and
(4) Any other evidence of suggestiveness.
3. The court may dismiss the motion at any time it concludes that the defendant's initial claim of suggestiveness is not supported by the evidence.
4. Additional factors the judge shall consider during the suppression hearing include, but shall not be limited to, the following:
(1) The length of time the witness had to observe the event;
(2) The distance between the witness and the perpetrator;
(3) The lighting conditions at the time of the event;
(4) Whether the witness was under the influence of alcohol or drugs;
(5) The age of the witness;
(6) Whether the perpetrator was wearing a disguise;
(7) Whether the suspect had different facial features at the time of the identification;
(8) The length of time that elapsed between the crime and the identification;
(9) Whether the identification was by a witness who is a different race than the suspect;
(10) The degree of attention the eyewitness paid to the perpetrator during the event; and
(11) The accuracy of any descriptions of the suspect provided by the eyewitness before the identification procedure occurred.
5. The judge shall approve the motion to suppress the identification evidence if he or she finds, from the totality of the circumstances, that a substantial likelihood of irreparable misidentification exists.
6. Expert testimony shall be admissible on eyewitness identifications at the hearing on a motion to suppress identification evidence and at the trial.
7. If eyewitness identification evidence is admitted at trial, the court shall instruct the jury, in addition to any instructions admissible under subsection 7 of section 491.500, on how to assess the reliability of the identification. The court shall also instruct the jury on any factors that may raise the risk of misidentifications based on the particular facts of the case, including, but not limited to, the factors listed in subsection 4 of this section.
545.365. 1. As used in this section, the following terms shall mean:
(1) "Consideration", any agreement that is expressed or implied for a plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, benefit, immunity, financial assistance, reward, or amelioration of current or future conditions of incarceration in return for, or in connection with, the informant's testimony in the criminal proceeding in which the prosecuting or circuit attorney intends to call him or her as a witness;
(2) "In-custody informant", a person, other than a co-defendant, percipient witness, accomplice, or co-conspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant were being held within the same correctional institution.
2. In any criminal trial or proceeding in which the prosecuting or circuit attorney intends to call an in-custody informant to testify on any matter, the attorney shall disclose to the defense attorney, in addition to any other information required to be disclosed by law, the following:
(1) A written statement, signed by the informant, his or her attorney if the informant is represented, and the prosecuting or circuit attorney, setting out any and all consideration promised to, received by, or to be received by the informant from any source;
(2) Any video or audio recording of the informant's interview or discussion with law enforcement officers regarding the statement;
(3) The complete criminal history of the informant;
(4) The names and addresses of any and all persons with information concerning the defendant's alleged statements, including but not limited to: law enforcement and prison officers to whom the informant related the statements, other persons named or included in the statement, and any other persons who witnessed the statement or who can be reasonably expected to have witnessed the statement;
(5) Any prior cases in which the informant testified and any consideration promised to, or received by, the informant, provided such information may be obtained by reasonable inquiry;
(6) Any and all statements by the informant concerning the offense charged; and
(7) Any other information that tends to undermine the informant's credibility.
3. Any materials required to be disclosed under this section are admissible to impeach the credibility of the in-custody informant if the informant testifies at a court proceeding.
4. In order for the testimony of an in-custody informant to be admissible in a court proceeding, the prosecuting or circuit attorney shall file a motion requesting the testimony be admissible. The prosecuting or circuit attorney shall bear the burden of proof at the hearing. The court may approve the motion if it concludes that, by a preponderance of the evidence, the testimony is reliable and corroborated by other evidence.
5. Corroborating evidence shall be credible evidence or information available independent of the in-custody informant, which significantly supports the informant's testimony. Corroborating evidence shall not include the testimony of another in-custody informant unless it is established by a preponderance of the evidence that the informant has not communicated with another in-custody informant about the testimony.
6. In order to determine whether the evidence is reliable, the court shall consider the following:
(1) Any requests for consideration by the in-custody informant, any consideration offered, and whether any offer of consideration was in writing and signed by the prosecuting or circuit attorney and the informant;
(2) Whether the informant's interview or discussion with law enforcement officers regarding the statement was video or audio recorded;
(3) The complete criminal history of the informant;
(4) Any statement made by the defendant, including the specificity of the statement, whether the statement led to the discovery of new evidence or contained details only known by the perpetrator, and the extent to which the statement contained details which could reasonably be accessed by the informant other than through statements by the defendant;
(5) The time, place, and circumstances of the statement and the disclosure of the statement to law enforcement officials, including how the statement was recorded by the informant, how law enforcement officers learned that the informant had information, and how officers questioned the informant about the disclosure, investigated the information, and recorded the disclosure;
(6) Any relationship between the informant and the defendant;
(7) Any inconsistent statement by the informant;
(8) The reliability of testimony provided by the informant on previous occasions in which the informant claimed to have been witness to statements made in custody or testified in a court proceeding on behalf of or against another person, or on his or her own behalf;
(9) The quality of corroborating evidence; and
(10) Any other evidence relating to the credibility of the informant and the reliability of the testimony.
7. Whenever an in-custody informant has testified at trial, the court shall instruct the jury to consider the factors listed in subsection 6 of this section when evaluating the reliability of the testimony. The jury shall not be instructed that the court has already found the in-custody informant to be reliable.
8. The attorney general shall create and maintain a registry of in-custody informants. The registry shall contain the name of any in-custody informant who testifies at any criminal proceeding, and any information regarding the informant or such person's testimony that was presented in court or disclosed to defense attorneys under this section. Information in the registry shall not be a public record under chapter 610 and shall only be available to prosecuting or circuit attorneys, law enforcement officers, and defense attorneys upon request.
547.035. 1. A person in the custody of the department of corrections claiming that forensic [DNA] testing will demonstrate the person's innocence of the crime for which the person is in custody may file a postconviction motion in the sentencing court seeking such testing. A person who has been sentenced to death who claims forensic testing will demonstrate the person's innocence of any statutory aggravating factor under section 565.032 that the trier set out in its findings or verdict when declaring its punishment may file a post conviction motion in the sentencing court seeking such testing. The procedure to be followed for such motions is governed by the rules of civil procedure insofar as applicable.
2. The motion must allege facts under oath demonstrating that:
(1) There is evidence upon which [DNA] forensic testing can be conducted; and
(2) The evidence was secured [in relation to the crime] during an investigation of any crime, whether committed by the offender filing the motion or by any other person; and
(3) There is a reasonable likelihood that additional testing would produce more probative results, or the evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the movant at the time of the trial;
(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
(c) The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested [DNA] forensic testing, or if the movant has been sentenced to death, that such person would not have been sentenced to death.
3. Movant shall file the motion and two copies thereof with the clerk of the sentencing court. The clerk shall file the motion in the original criminal case and shall immediately deliver a copy of the motion to the prosecutor.
4. The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:
(1) It appears from the motion that the movant is not entitled to relief; or
(2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.
5. Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.
6. If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.
7. The court shall order appropriate testing if the court finds:
(1) A reasonable probability exists that the movant would not have been convicted or sentenced to death if exculpatory results had been obtained through the requested [DNA] forensic testing; and
(2) That movant is entitled to relief. Such testing shall be conducted by a facility mutually agreed upon by the movant and by the state and approved by the court. If the parties are unable to agree, the court shall designate the testing facility. The court shall impose reasonable conditions on the testing to protect the state's interests in the integrity of the evidence and the testing process.
8. The court shall issue findings of fact and conclusions of law whether or not a hearing is held.
547.037. 1. If testing ordered pursuant to section 547.035 demonstrates a person's innocence of the crime for which the person is in custody or demonstrates a person's innocence of the aggravating factor or factors the trier set out in its findings or verdict when declaring its punishment of a death sentence, a motion for release or motion for a new sentence may be filed in the sentencing court.
2. The court shall issue to the prosecutor an order to show cause why the motion should not be granted. The prosecutor shall file a response consenting to or opposing the motion.
3. If the prosecutor consents to the motion and if the court finds that such testing demonstrates the movant's innocence of the crime for which he or she is in custody, the court shall order the movant's release from the sentence for the crime for which testing occurred. If the prosecutor consents to the motion and the court finds that the testing demonstrates the person's innocence as it relates to the aggravating factor or all the factors the trier set out in its findings or verdict when declaring its punishment of a death sentence, the court shall order the person to serve a sentence of imprisonment for life without eligibility for probation, parole, or release except by act of the governor. If the testing demonstrates the person's innocence of one or more aggravating factors but not all of the factors that the trier set out in its findings or verdict, then the court shall set the sentence aside and order a retrial of the punishment hearing. A new jury shall be selected or a jury may be waived by agreement of both parties and the punishment trial shall proceed in accordance with this chapter.
4. If the prosecutor files a response opposing the movant's release or resentencing, the court shall conduct a hearing. If a hearing is ordered, the public defender shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.
5. If the court finds that the testing ordered pursuant to section 547.035 demonstrates the movant's innocence of the crime for which he or she is in custody, the court shall order the movant's release from the sentence for the crime for which the testing occurred. If the court finds the testing demonstrates the person's innocence of the statutory aggravating factor or all the factors under section 565.032 that the trier set out in its findings or verdict when declaring its punishment of a death sentence, the court shall order the person to serve a sentence of imprisonment for life without eligibility for probation, parole, or release except by act of the governor. If the testing demonstrates the person's innocence of one or more aggravating factors but not all of the factors that the trier set out in its findings or verdict, then the court shall set the sentence aside and order a retrial of the punishment hearing. A new jury shall be selected or a jury may be waived by agreement of both parties and the punishment trial shall proceed in accordance with this chapter. Otherwise, relief shall be denied the movant.
6. The court shall issue findings of fact and conclusions of law whether or not a hearing is held. An appeal may be taken from the court's findings and conclusions as in other civil cases.
590.700. 1. As used in this section, the following terms shall mean:
(1) "Custodial interrogation", the questioning of a person under arrest, who is no longer at the scene of the crime, by a member of a law enforcement agency along with the answers and other statements of the person questioned. "Custodial interrogation" shall not include:
(a) A situation in which a person voluntarily agrees to meet with a member of a law enforcement agency;
(b) A detention by a law enforcement agency that has not risen to the level of an arrest;
(c) Questioning that is routinely asked during the processing of the arrest of the suspect;
(d) Questioning pursuant to an alcohol influence report;
(e) Questioning during the transportation of a suspect;
(2) "Recorded" and "recording", any form of audiotape, videotape, motion picture, or digital recording.
2. All custodial interrogations of persons suspected of committing or attempting to commit murder in the first degree, murder in the second degree, assault in the first degree, assault of a law enforcement officer in the first degree, domestic assault in the first degree, elder abuse in the first degree, robbery in the first degree, arson in the first degree, forcible rape, forcible sodomy, kidnapping, statutory rape in the first degree, statutory sodomy in the first degree, child abuse, or child kidnapping shall be recorded when feasible. Custodial interrogations shall not be required to be recorded:
[3. Law enforcement agencies may record an interrogation in any circumstance with or without the knowledge or consent of a suspect, but they shall not be required to record an interrogation under subsection 2 of this section:]
(1) If the suspect requests that the interrogation not be recorded;
(2) If the interrogation occurs outside the state of Missouri;
(3) If exigent public safety circumstances prevent recording; or
(4) To the extent the suspect makes spontaneous statements[;] .
[(5)] 3. If the recording equipment fails[;] or
[(6) If] the recording equipment is not available at the location where the interrogation takes place, the law enforcement agency shall demonstrate a good faith effort to maintain recording equipment for interrogations in order to comply with this section.
4. Law enforcement agencies may record an interrogation in any circumstance with or without the knowledge or consent of a suspect.
5. Each law enforcement agency shall adopt a written policy to record custodial interrogations of persons suspected of committing or attempting to commit the felony crimes described in subsection 2 of this section.
[5. If a law enforcement agency fails to comply with the provisions of this section, the governor may withhold any state funds appropriated to the noncompliant law enforcement agency if the governor finds that the agency did not act in good faith in attempting to comply with the provisions of this section.
6. Nothing in this section shall be construed as a ground to exclude evidence, and a violation of this section shall not have impact other than that provided for in subsection 5 of this section. Compliance or noncompliance with this section shall not be admitted as evidence, argued, referenced, considered or questioned during a criminal trial.]
6. An oral, written, or sign language statement of an accused made as a result of a custodial interrogation shall be presumed to be inadmissible as evidence in any criminal proceeding brought for any of the crimes listed in subsection 2 of this section if the interrogation was not recorded as required under this section unless one of the exceptions listed in subsection 2 or 3 of this section applies or the statement is used for the purposes of impeachment. The state shall bear the burden of proving the applicability of an exception.
7. The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
8. Nothing contained in this section shall be construed to authorize, create, or imply a private cause of action.
9. Every electronic recording required under this section shall be preserved until judgment for any offense relating to the statement is final and all direct and habeas corpus appeals are exhausted, or the prosecution of such offense is barred by law.
650.056. 1. Any biological evidence [leading to a conviction] gathered during an investigation of a felony described in subsection 1 of section 650.055 [which has been or can be tested for DNA] shall be preserved by the investigating law enforcement agency until any offender who was convicted of a felony and sentenced to a term of imprisonment as a result of such investigation has been released from prison.
2. Any biological evidence gathered during an investigation of first degree murder shall be preserved by the investigating law enforcement agency until:
(1) Five years after any offender who was convicted of first degree murder as a result of the investigation has been executed; or
(2) Such person as been released from prison as a result of a pardon or finding of innocence.
3. The evidence shall be retained in a manner that preserves any possible DNA evidence for future testing. If retention of a particular piece of property containing DNA evidence is impractical, the agency shall take reasonable care to retain representative samples of portions of the property that contain DNA evidence.
4. If the crime remains unsolved, any biological evidence collected during the investigation shall be properly preserved until the prosecuting or circuit attorney provides written authorization to the agency to destroy or discard the evidence.
650.070. Each law enforcement agency that collects biological evidence for use in criminal investigations shall develop written guidelines, that are open to public inspection, for the identification, collection, and preservation of biological evidence. Such guidelines shall include, but not be limited to, the following provisions:
(1) Whenever it is believed that biological evidence relevant to an investigation of a dangerous felony, as the term "dangerous felony" is defined in section 556.061, or first degree murder is present at a location, a law enforcement officer or other forensic investigator shall be promptly dispatched to the location to collect the evidence;
(2) Only law enforcement officers or other forensic investigators properly trained in the identification, collection, and preservation of biological evidence shall identify, collect, and preserve biological evidence in felony criminal investigations;
(3) Law enforcement officers and other forensic investigators shall exercise reasonable care to ensure that the collection of biological evidence from a crime scene is representative of all relevant evidence present;
(4) Biological evidence shall be collected and preserved in a manner designed to document its identity, and to ensure its integrity and its availability for testing and retesting;
(5) The evidence shall be properly handled, packaged, labeled, and the following information shall be documented:
(a) The location where it was collected;
(b) The person, place, or thing from which the evidence was collected;
(c) The date and time it was collected;
(d) The person who collected it; and
(e) The manner in which it was collected and preserved.
650.075. 1. When possible, a portion of any piece of biological evidence tested and any extract from a DNA sample shall be preserved for further testing.
2. If a law enforcement officer is requesting the testing, a crime laboratory shall not undertake testing that entirely consumes a DNA sample or the extract from it without the prior approval of the prosecutor. Before approving such a test, the prosecutor shall provide the defendant against whom an accusatorial instrument has been filed in relation to the criminal investigation in which the sample is being tested, or the suspect who has requested prior notice, an opportunity to object and move for an appropriate court order.
3. If an attorney for the defendant is requesting a test that entirely consumes a DNA sample or the extract from it, the attorney shall provide the prosecutor with an opportunity to object and move for an appropriate court order.
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