Bill Text: PA HB2255 | 2011-2012 | Regular Session | Introduced

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Bill Title: Providing for procedures in lineups.

Spectrum: Strong Partisan Bill (Democrat 23-2)

Status: (Introduced - Dead) 2012-03-16 - Referred to JUDICIARY [HB2255 Detail]

Download: Pennsylvania-2011-HB2255-Introduced.html

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PRINTER'S NO. 3227
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 2255 Session of2012
INTRODUCED BY WATERS, KIRKLAND, V. BROWN, DALEY, CALTAGIRONE, FABRIZIO, FRANKEL, GIBBONS, DeLUCA, DONATUCCI, HESS, YOUNGBLOOD, JOSEPHS, PRESTON, STURLA, THOMAS, READSHAW, McGEEHAN, PASHINSKI, PARKER, M. O'BRIEN, MURT, KOTIK, GEORGE AND ROEBUCK, MARCH 16, 2012
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 16, 2012
AN ACT
Providing for procedures in lineups.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Police Lineup
Procedure Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Eyewitness." A person who observes another person at or
near the scene of an offense.
"Filler." 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." A lineup, whether a photo lineup
or a live lineup.
"Independent investigator." An investigator who is unaware
of which person in the lineup is suspected as perpetrator of the
offense.
"Investigator." A person who conducts a live or photo
lineup.
"Lineup." A procedure in which a group of persons, including
the person suspected as the 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
is able to identify the suspect as the perpetrator.
"Lineup member." A person, either a suspect or filler, who
is used for a lineup.
"Live lineup." A lineup using actual persons.
"Photo lineup." A lineup in which persons are not present
and that uses technology, including, but not limited to, an
array of photographs of persons.
"Sequential lineup." A lineup in which each actual person,
photograph or other piece of technology is presented to the
witness separately and that is removed after it is viewed and
during which lineup the prosecutor and defense counsel set the
order of the presentation prior to the lineup.
"Show-up." A suspect who voluntarily surrenders or a person
who the police have reason to believe participated in an offense
and is detained in the immediate aftermath of the offense.
"Simultaneous lineup." A lineup in which all persons,
photographs or other pieces of technology are presented to the
witness at the same time.
Section 3. General procedure.
The Pennsylvania State Police and each municipal police
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department shall adopt procedures for conducting photo lineups
and live lineups that comply with the following requirements:
(1) Video cameras shall be permanently installed in all
rooms where lineups are conducted.
(2) The video cameras shall be oriented to record both
the behavior of the lineup members and of the investigator
and witness.
(3) The videotape shall be of a quality that represents
the lineup clearly and fairly.
(4) The videotape of the lineup members may be either as
a group or of each lineup member, but it shall preserve the
presentation order of the lineup.
(5) Lineup members or photos shall be presented to
witnesses in the form of a sequential lineup and not as a
simultaneous lineup.
(6) Independent investigators shall be used when
practicable. When it is impracticable to use an independent
investigator:
(i) The lineup shall be presented sequentially
rather than simultaneously.
(ii) The investigator shall state, in writing, why an
independent investigator was not used.
(7) No lineup may be conducted with more than one
witness present at a time.
(8) More than one witness shall be separated so that
each is not aware of the other witness' responses.
(9) No person, other than counsel, who knows the
suspect's identity may be present during the lineup.
(10) Nothing shall be said to the eyewitness regarding
the position in the lineup of the person suspected as the
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perpetrator, except as otherwise provided in section 4.
(11) Nothing shall be said or done that might influence
the eyewitness' selection of the suspect. An administrator of
the lineup shall avoid making any comments during the
selection procedure and shall avoid making unintentional
voice inflections or prolonged eye contact regarding
selection.
(12) The investigator shall ensure that the witness does
not write or mark any materials that will be used in other
identification procedures.
(13) No materials indicating previous identifications
may be visible to the witness.
(14) A witness may not be informed of how many lineup
members or photographs will be shown.
(15) (i) As each lineup member is presented, the
investigator shall state to the witness: "Is this the
person you saw (insert description of act here)? Yes or
no."
(ii) The witness' response to the question shall be
documented with a reference to the number of lineup
member or photograph being presented and the exact
response given.
(iii) If the witness answers "no" to the question,
the next lineup member or photograph shall be shown.
(iv) (A) If the witness answers "yes," the
investigator shall ask: "Can you describe how sure
you are?"
(B) No witness may be required to give an answer
to the question in clause (A) and the witness' exact
statement, if given, shall be documented immediately.
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(16) If the witness identifies a lineup member as the
perpetrator, the witness shall not be provided with any
information concerning the lineup member prior to obtaining
the witness' statement that the witness is certain of the
selection.
(17) All fillers or photographs shall be shown, even if
an identification is made in the course of the procedure.
(18) (i) If the witness can not make an identification
after all lineup members and photographs are shown, the
administrator shall ask: "Would you like to view the
lineup again?"
(ii) The fact that the witness did not make an
identification the first time through, and that the
investigator asked the witness if the witness would like
to view the lineup again, shall be documented in the
video and the written record. The outcome of the second
display shall also be documented in the video and written
records.
(19) No witness may be informed prior to the complete
lineup presentation that the witness will be allowed to view
the lineup a second time if requested by the witness.
(20) If a witness requests to see only one specific
lineup member or photograph a second time, the request shall
be documented in the video and written record.
(21) If a witness requests to see more than one specific
lineup member or photograph a second time, the entire array
shall be shown and the fact that there was a second
presentation shall be documented in the video and written
record.
Section 4. Duty of judges.
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In a criminal case, the judge shall:
(1) Permit, in appropriate circumstances, the
introduction of expert testimony on the issue of human memory
as it relates to the identification process and on the issue
of best practices for eyewitness identification procedures.
(2) Provide, if a jury trial, a standardized jury
instruction:
(i) To acquaint the jury with factors that may
contribute to unreliable eyewitness identifications. The
instruction shall enumerate factors for the jury to
consider and shall include the following final statement:
"Eyewitness testimony should be carefully examined in
light of other evidence in the case."
(ii) That eyewitness identification should be
evaluated in light of current scientific research
regarding cross-racial identifications and the relevance
of the degree of certainty expressed by witnesses in
court.
Section 5. Witness instructions.
(a) Sequential lineups.--A Witness at a sequential lineup
shall be instructed as follows prior to the lineup:
"In a moment, I am going to show you a series of persons or
photos. The person who committed the crime may or may not be
included. I do not know whether the person being investigated is
included.
"It is just as important to clear an innocent person of
wrongdoing as it is to identify the perpetrator.
"Even if you identify someone during this procedure, I will
continue to show you all persons or photos in the series.
"Keep in mind that things like hair styles, beards and
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mustaches can be easily changed and that complexion colors may
look slightly different in photographs.
"You should not feel like you have to make an identification.
This procedure is important to the investigation whether or not
you identify someone.
"The persons or photos will be shown to you one at a time and
are not in any particular order. Take as much time as you need
to look at each one. After each person or photo, I will ask you
'Is this the person you saw (insert the act here)? Yes or no?'
Take your time answering the question. If you answer 'yes,' I
will then ask you, 'Can you describe how sure you are?'
"Because you are involved in an ongoing investigation, in
order to prevent damage to the investigation, you should avoid
discussing this identification procedure or its results,
especially with other witnesses or the media.
"Do you understand the way the lineup procedure will be
conducted and the other instructions I have given you?"
(b) Simultaneous lineups.--A witness at a simultaneous
lineup shall be instructed as follows prior to the lineup:
"In a moment, I am going to show you a series of persons or
photos. The person who committed the crime may or may not be
included. I do not know whether the person being investigated is
included.
"Keep in mind that things like hair styles, beards and
mustaches can be easily changed and that complexion colors may
look slightly different in photographs."
Section 6. Written record.
(a) Requirements.--A written record of the identification
procedure shall be made that includes the following information:
(1) The complete videotapes.
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(2) The signed instructions given to the witness.
(3) The identification results, if any.
(4) The names of all persons present at the
identification procedure.
(5) The date, time and location of the identification
procedure.
(6) The order in which the lineup members or photographs
were displayed.
(7) The number of times the lineup was viewed and the
results of the procedure.
(8) The witness' own words regarding the degree of
certainty of any identification.
(9) In a photo lineup, the actual photographs used.
(10) The record shall be signed by the eyewitness, along
with the witness' own description of the degree of certainty
in the selection.
(b) Duty of investigator.--The investigator shall further
record and sign:
(1) The names of all fillers used.
(2) The procedure employed.
(3) The number of lineup members or photographs shown.
(4) The sources of all photos used, including any
specific words, conduct or gestures required of lineup
members.
(c) Duty of Pennsylvania State Police.--The Pennsylvania
State Police, in consultation with the police departments across
this Commonwealth, shall develop a standard form for recording
lineup results for use throughout this Commonwealth. Police
departments may modify the form for their own needs.
Section 7. Detailed procedures.
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(a) Fillers.--
(1) There shall be a minimum of seven fillers per
suspect in a photo identification procedure and a minimum of
five fillers per suspect in a live lineup.
(2) There may be more than one suspect in the lineup if
more than one suspect fits the description of the
perpetrator. In such an instance, the number of fillers
should be increased to a minimum of seven per suspect in a
photo lineup and five per suspect for a live lineup.
(3) The suspect must not unduly stand out in any lineup.
(4) Fillers should resemble the witness' description of
the perpetrator in significant features, including face,
profile, height, weight, build, posture, gait, voice and
specific articles of clothing.
(5) If the perpetrator was described as having an
unusual identifying mark, all fillers shall have similar
markings or all lineup members should have similar coverings
over the described area.
(6) If a composite is used, the fillers shall resemble
the witness' description based on their resemblance to the
composite.
(7) When there is an inadequate description of the
perpetrator or a suspect whose appearance differs from the
description of the perpetrator, fillers shall resemble the
suspect in significant features.
(8) A lineup shall commence with a filler.
(9) All lineup members shall be out of the view of the
eyewitness at all times prior to the lineup. The witness may
not incidentally view the suspect in the hall or station in
advance of the lineup.
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(10) When showing a new suspect, the investigator shall
avoid reusing the same fillers in lineups shown to the same
witness.
(11) Lineup members shall be positioned randomly in the
lineup.
(12) A suspect shall be placed in a different position
in each lineup when there are multiple witnesses in the same
case.
(13) If the witness 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 lineup.
(14) When showing a new suspect, the investigator should
avoid reusing the same fillers in lineups shown to the same
witness.
(b) Photo lineups.--
(1) Each photograph shall be viewed one at a time.
(2) The photographs shall be displayed in random order.
(3) No writings or information concerning previous
arrests or previous identification results shall be visible
to the witness.
(4) After the photographs have been viewed, they should
be marked denoting the order that they were shown to the
witnesses and retained for later use in court.
(c) Uniformity of action.--In a live lineup, the
investigator shall ensure that any identification actions, such
as speaking or moving, are performed by all members of the
lineup.
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Section 8. Show-up procedures.
The following provisions shall apply when a show-up appears
before an investigator for presentation to a witness:
(1) A show-up suspect may only be shown to a witness
when circumstances require prompt display. Such circumstances
shall include, but are not limited to:
(i) situations in which there is insufficient
probable cause to detain the suspect long enough to
construct a proper lineup;
(ii) there are concerns about public safety; or
(iii) there are concerns regarding the health or
survival of either the suspect or the witness.
(2) The suspect shall be encouraged to consent to
voluntary detainment until a proper lineup can be formed.
(3) The show-up suspect shall sign and date a written
consent that the show-up suspect is a willing participant in
the lineup without promises, threats, pressure or coercion.
(4) The show-up procedure shall only be conducted when
the suspect matching the description of the perpetrator is
located in close proximity in time and place to the offense.
(5) A description of the perpetrator shall be documented
prior to the show-up procedure.
(6) If practical, transportation of the witness to the
location of the detained suspect to limit the legal impact of
the suspect's detention.
(7) A witness shall be given a cautionary instruction
that the individual may not be the perpetrator.
(8) If there are multiple witnesses and one witness
makes an identification during a show-up procedure, the
remaining witnesses shall be reserved for a subsequent
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lineup.
Section 9. Remedies for noncompliance.
(a) Suppression.--A trial court shall consider evidence of
any failure to comply with any provision of this act when
adjudicating motions to suppress witness identification.
(b) Evidence.--Evidence of a failure to comply with any
provision of this act shall be admissible in support of claims
of witness misidentification as long as the evidence is
otherwise admissible.
(c) Jury instruction.--When evidence of a failure to comply
with a provision of this act has been presented at trial, the
jury shall be instructed that it may consider credible evidence
of noncompliance in determining the reliability of witness
identifications.
Section 10. Training.
(a) Law enforcement training.--The Attorney General shall
create, administer and conduct training programs for law
enforcement officers and recruits on the methods and technical
aspects of the witness identification practices and procedures
for the purposes of this act.
(b) Judicial training.--The Commonwealth shall require and
provide training for judges, prosecutors and defense lawyers, to
acquaint them with the particular risks of cross-racial
identifications, as well as unreliable identification
procedures, and the use of expert testimony to explain these
risks to juries.
Section 11. Effective date.
This act shall take effect in 60 days.
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