Eyewitness ID Reform Legislation:

Past, Present and Future

Scott Ehlers, NACDL State Legislative Affairs Director

Eyewitness ID Reform Legislation Enacted (2003-5)

2002: Governor’s Commission on Capital Punishment

2003: Death Penalty Reform Bill (SB 472; Public Act

093-0605) enacted. Includes following eyewitness ID

reforms:

• Lineups must by “photographed or otherwise recorded” and all photographs and photo spreads must be disclosed to defense counsel. (725 ILCS 5/107A-5)

Illinois: SB 472 (2003)

Illinois: SB 472 (cont.)

• Eyewitnesses viewing a lineup must sign a standardized form, informing them that:

1) suspect may not be in lineup and they are not obligated to make an ID; and 2) they can’t assume lineup administrator knows which person is the suspect.

• Pilot study on sequential lineups (725 ILCS 5/107A-10).

2004: HJR 79 passes General Assembly; directs VA State Crime Commission to study mistaken eyewitness ID, lineup procedures, and sequential method.

Jan. 2005: Crime Commission study makes 6 recommendations, incl.:

• law requiring police depts. to have written policy for conducting lineups;

• law designating VA State Police as repository for all mug shots and queries for lineups;

• workgroup to develop a model lineup policy; and• new police trainings, accreditation should incl.

sequential method.

Virginia: HB 2632 (2005)

2005: HB 2632 enacted. • Photos of arrestees to be submitted to the Central

Criminal Records Exchange; • Police depts. must have written policies and

procedures for in-person and photo lineups; and,• Dept. of Criminal Justice Services and VA State

Crime Commission in charge of developing model lineup procedures and training requirements.

Virginia: HB 2632 (cont’d)

Wisconsin: AB 648 (2005)

2003: Steven Avery exonerated after serving 18 years in prison. Bad ID was involved.

2004: Avery Task Force created by conservative Rep. Mark Gundrum to find out what went wrong in Avery case.

2005: Avery Task Force makes its recommendations, incl. reforming eyewitness ID procedures.

Wisconsin: AB 648 (cont’d)

2005: AB 648 enacts reforms to reduce wrongful convictions, incl. eyewitness ID reforms:

• Police must have written procedures “designed to reduce the potential for erroneous identifications”;

• Biennial review of policies;• Police must consider model policies adopted by

other jurisdictions; • “To the extent feasible,” use blind administrators

and the sequential procedure; and,• Document lineup procedure.

Eyewitness ID Reform Legislation Introduced (2005-6)

32 Bills in 17 States

Eyewitness ID Reform – Legislative Models

• Prescriptive – Establishes specific eyewitness ID procedures the police must follow.

• Best Practices – Requires police, AG, or training body to develop lineup procedures based on best practices or the DOJ guidelines.

• Task Force – Establishes a task force or commission to study the issue and make eyewitness ID reform recommendations.

Eyewitness ID Reform – Legislative Models (cont’d)

• Pilot Project – Establishes a pilot project to study how eyewitness ID procedures perform in the field.

• Expert Testimony – Revises the Evidence Code to allow expert testimony on the reliability of eyewitness ID.

• Combination

Prescriptive Eyewitness ID Legislation (2005-6)11 States: Connecticut; Georgia; Hawaii;

Massachusetts; Michigan; New Hampshire; New York; Pennsylvania (SB 948); Rhode Island; Vermont; West Virginia

Typical Elements:• Blind Administrator or Equivalent• Eyewitness Instructions, i.e. perpetrator not

necessarily in the lineup; administrator doesn’t know the suspect; don’t feel compelled to ID someone

• Sequential Lineup

Prescriptive Eyewitness ID Legislation (cont’d)

• Composition Requirements for Lineups and Photo Arrays

• Recordkeeping of the Lineup Procedure; i.e. date, time, place; recording/photo of lineup; description of the lineup or photo array; confidence statements of eyewitness

• Remedy for Failure to Comply with Prescribed Procedures

• Police Training

“Best Practices” Eyewitness ID Legislation (2005-6)

2 States: Maryland (SB 863 amended); Wisconsin (AB 648)

Maryland: Passed Senate, House Judiciary, 1st reading on House floor; ran out of time

Task Force Legislation (2005-6)

2 States: Maine; Pennsylvania (SB 946)

Pilot Project Eyewitness ID Legislation (2005-6)

1 State: Pennsylvania (SB 947)

Combination Legislation (2005-6)

2 States: California (SB 1544) - Still Alive!

Missouri (HB 1330)

The Future: Recommendations

1) Task Force or Innocence Commission Support

2) Buy-In from Law Enforcement

3) Use Exonerations to Your Advantage

4) Less (Specific) is More (Better)

5) Sequential is Trouble

Contact:

Scott Ehlers

NACDL State Legislative Affairs Director

Ph: 202/872-8600 x 242

scott@nacdl.org