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Eyewitness ID Reform Legislation: Past, Present and Future

Eyewitness ID Reform Legislation: Past, Present and Future. Scott Ehlers, NACDL State Legislative Affairs Director. Eyewitness ID Reform Legislation Enacted (2003-5). Illinois: SB 472 (2003). 2002 : Governor’s Commission on Capital Punishment

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Eyewitness ID Reform Legislation: Past, Present and Future

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  1. Eyewitness ID Reform Legislation: Past, Present and Future Scott Ehlers, NACDL State Legislative Affairs Director

  2. Eyewitness ID Reform Legislation Enacted (2003-5)

  3. Illinois: SB 472 (2003) 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)

  4. 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).

  5. Virginia: HB 2632 (2005) 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.

  6. Virginia: HB 2632 (cont’d) 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.

  7. 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.

  8. 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.

  9. Eyewitness ID Reform Legislation Introduced (2005-6) 32 Bills in 17 States

  10. 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.

  11. 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

  12. 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

  13. 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 • PoliceTraining

  14. “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)

  15. 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)

  16. The Future: Recommendations • Task Force or Innocence Commission Support • Buy-In from Law Enforcement • Use Exonerations to Your Advantage • Less (Specific) is More (Better) • Sequential is Trouble

  17. Contact: Scott Ehlers NACDL State Legislative Affairs Director Ph: 202/872-8600 x 242 scott@nacdl.org

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