07 LC 29
2646
House
Bill 308
By:
Representatives Benfield of the
85th,
Stephenson of the
92nd,
Mangham of the
94th,
Abdul-Salaam of the
74th,
and Thomas of the
55th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 17 of the Official Code of Georgia Annotated, relating to criminal
procedure, so as to require a procedure for enhancing eyewitness identification
accuracy; to provide for legislative findings; to provide for a short title; to
provide for definitions; to provide for general guidelines relating to the
development of eyewitness identification protocol and exceptions thereto; to
provide for procedures to compose and present photo lineups and live lineups to
witnesses; to provide for instructions to be given to witnesses who view
lineups; to provide for documentation of identification procedures; to amend
Title 35 of the Official Code of Georgia Annotated, relating to law enforcement
officers and agencies, so as to provide for training in enhancing eyewitness
identification accuracy; to provide for related matters; to provide for
effective dates and applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly finds and declares that eyewitness error is the leading cause
of mistaken convictions, and cases of mistaken convictions in this state due to
eyewitness misidentification have a resulted in actual perpetrators remaining
free to commit more crimes. The General Assembly further finds that the goal of
a police investigation is to identify accurately and apprehend the true
perpetrators of crimes, and scientific studies of eyewitness memory have
demonstrated that eyewitness evidence is, like trace physical evidence,
susceptible to contamination if not handled properly. The General Assembly
further finds that well-intentioned witnesses and authorities acting in good
faith may sometimes inadvertently undermine the accuracy of an identification
procedure unless appropriate safeguards are in place. Accordingly, the General
Assembly, acutely aware that extensive scientific research has shown that
alternative methods of conducting identification procedures greatly enhance
eyewitness identification accuracy, declares that this state has a
compelling
interest in assuring that appropriate eyewitness identification procedures are
utilized in this state.
SECTION
2.
This
Act shall be known and may be cited as the "Eyewitness Identification Accuracy
Enhancement Act."
SECTION
3.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by adding a new chapter to read as follows:
"CHAPTER
19
17-19-1.
As
used in this chapter, the term:
(1)
'Filler' means a person, not a suspect in the crime under investigation, who is
made part of a live lineup or a photograph of a person, not a suspect in the
crime under investigation, that is made part of a photo lineup and presented to
a witness.
(2)
'Live lineup' means a selected group of persons presented to an eyewitness to a
crime containing a suspect and several fillers for the purpose of determining
whether the eyewitness is able to identify the suspect as the
perpetrator.
(3)
'Neutral blind administrator' means a person who conducts photo lineup or live
lineup procedures while unaware of which person in the lineup is the suspect and
which are fillers.
(4)
'Photo lineup' means a selected group of photographs of persons presented to an
eyewitness to a crime containing a single suspect and several fillers for the
purpose of determining whether the eyewitness is able to identify the suspect as
the perpetrator.
(5)
'Suspect' means a person under investigation for participation in a
crime.
17-19-2.
Prior
to January 1, 2008, the Georgia Peace Officer Standards and Training Council
shall develop and disseminate to all law enforcement jurisdictions in this state
comprehensive policies and procedures and associated training materials for law
enforcement agencies regarding photo lineup and live lineup eyewitness
identification procedures that implement the requirements set forth in this
chapter.
17-19-3.
(a)
All photo lineup and live lineup eyewitness identification procedures conducted
by law enforcement officers shall be administered pursuant to the procedures
developed pursuant to Code Section 17-19-2 and consistent with the requirements
of this chapter.
(b)
Composition of photo lineups and live lineups shall meet the following
requirements:
(1)
At least five fillers shall be included in a photo lineup, in addition to the
suspect, and at least four fillers shall be included in a live lineup, in
addition to the suspect;
(2)
Only one member of a photo lineup or live lineup shall be a suspect, and the
remainder shall be fillers who are not suspects but who fit the
eyewitness´s description of the suspect;
(3)
In photo lineups, the suspect´s photo should resemble his or her appearance
at the time of the crime and not unduly stand out;
(4)
If the eyewitness has previously viewed a photo lineup or live lineup in
connection with the investigation of the crime, the fillers in any subsequent
lineup shall be different from the fillers used in any prior
lineup;
(5)
In a photo lineup, no writings or information concerning any previous arrest,
indictment, or conviction of the suspect shall be visible or made known to the
eyewitness;
(6)
In a live lineup, any identifying actions, such as speech, gestures, or other
movements, shall be performed by all lineup participants; and
(7)
In a live lineup, witnesses shall not be exposed to the members of the lineup
before the procedure begins.
(c)(1)
Whenever possible, the administrator of photo lineup or live lineup eyewitness
identification procedure shall be a neutral blind administrator, and no person
familiar with the identity of the suspect shall be present during the
identification procedure.
(2)
When it is not feasible to have the procedure administered by a neutral blind
administrator, a photo lineup eyewitness identification procedure may be
conducted using an alternative method specified and approved pursuant to Code
Section 17-19-2. Any alternative method shall be carefully structured to achieve
neutral blind administration and prevent the administrator from knowing which
photograph is being presented to the eyewitness during the identification
procedure. Alternative methods may include:
(A)
Automated computer programs that can automatically administer the photo lineup
directly to an eyewitness and prevent the administrator from seeing which photo
the witness is viewing until after the procedure is completed;
(B)
A procedure in which photographs are placed in folders, randomly numbered, and
shuffled and then presented to an eyewitness such that the administrator cannot
see or track which photograph is being presented to the witness until after the
procedure is completed; or
(C)
Other procedures which achieve neutral blind administration.
(d)(1)
Live lineup and photo lineup eyewitness identification procedures shall be
presented to eyewitnesses using a sequential method, in which a witness is shown
photographs or live lineup participants one at a time and not simultaneously.
The eyewitness shall be asked to state for each photograph or person whether the
individual shown is the perpetrator of the crime, prior to viewing the next
lineup photograph or participant.
(2)
The administrator shall not offer any comment or feedback to the eyewitness
regarding the witness´s responses.
(3)
If there are multiple eyewitnesses, witnesses shall be presented with the
identification procedure separately, and the suspect shall be placed in a
different position in the photo lineup or live lineup for each
eyewitness.
(4)
Under no circumstances shall a sequential presentation be used unless the
procedure complies fully with neutral blind administration specified in
subsection (c) of this Code section.
17-19-4.
Prior
to beginning a photo lineup or live lineup identification procedure, the
administrator shall instruct the eyewitness that:
(1)
The perpetrator may or may not be among those shown, and the witness should not
feel compelled to make an identification;
(2)
The administrator is not aware of which person in the lineup is the suspect;
(3)
The witness will view individuals one at a time and will be requested to state
whether the individual shown is the perpetrator of the crime prior to viewing
the next lineup photograph or participant; and
(4)
The witness will be presented with the complete lineup, even if the witness
makes an identification in the middle of the procedure.
17-19-5.
(a)
Each eyewitness shall be given a written copy of the lineup instructions. Each
witness shall sign a form indicating that the witness has received, reviewed,
and understands the lineup instructions prior to the administration of the
identification procedure, and this form shall be kept as part of the law
enforcement file.
(b)
All eyewitness responses to the lineup participants shall be documented using
the witness´s own words, either in writing or with audio or video
recording.
(c)
If the eyewitness makes an identification, after the entire lineup has been
presented the administrator shall ask the witness to state in his or her own
words how confident he or she is that the person identified is the perpetrator
of the crime and make the witness´s verbatim response part of the record in
the law enforcement file.
(d)
The administrator shall refrain from any comment or feedback to the eyewitness
regarding the witness´s statements.
(e)
If no electronic recording is made, the eyewitness will be asked to review and
sign the written record of his or her responses to the identification procedure,
including any statements regarding an identification, prior to any feedback or
comment from the administrator or others involved in the
investigation.
17-19-6.
Notwithstanding
the directives of this chapter, the failure to strictly comply with the
provisions of this chapter shall not, in and of itself, preclude testimony and
evidence related to eyewitness identification being admissible into evidence;
this matter shall be in the sole discretion of the court. In deciding whether
testimony and evidence related to eyewitness identification shall be admissible
into evidence, the court shall consider whether the provisions of this chapter
were complied with, together with any other relevant
circumstance."
SECTION
4.
Title
35 of the Official Code of Georgia Annotated, relating to law enforcement
officers and agencies, is amended by adding a new Code section to the end of
Chapter 1, relating to general provisions for law enforcement officers and
agencies, to read as follows:
"35-1-15.
The
Georgia Peace Officer Standards and Training Council and the Georgia Public
Safety Training Center shall establish guidelines and procedures for the
incorporation of training materials and information in methods for enhancing
eyewitness identification accuracy pursuant to Chapter 19 of Title 17 in all
courses for which they have responsibility and oversight."
SECTION
5.
(a)
This section and Sections 1, 2, 4, and 6 of this Act shall become effective on
July 1, 2007.
(b) Section 3 of this Act shall become effective on January 1, 2008, and shall apply to all photo lineups and live lineups that occur pursuant to offenses that occur on or after January 1, 2008.
(b) Section 3 of this Act shall become effective on January 1, 2008, and shall apply to all photo lineups and live lineups that occur pursuant to offenses that occur on or after January 1, 2008.
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.