HB2960 98TH GENERAL ASSEMBLY

LRB098 09208 MRW 41410 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2960

Introduced , by Rep. Scott Drury

SYNOPSIS AS INTRODUCED:

725 ILCS 5/107A-0.1 new
725 ILCS 5/107A-2 new
725 ILCS 5/107A-5 rep.
725 ILCS 5/107A-10 rep.

Amends the Code of Criminal Procedure of 1963. Requires State, county, and local law enforcement to use identification lineup procedures, if practicable, that the administrator conducting the lineup shall not be aware of which person in the lineup or photo spread is suspected as the perpetrator of the offense under investigation. If it is not practicable to have an unaware administrator, the reason shall be explained in a report prepared prior to the lineup, or if a photo spread the spread shall be conducted by the use of a folder shuffle method, computer program, or other comparable method so that the person conducting the procedure does not know which photograph the eyewitness is viewing during the procedure. A lineup of persons or a photo spread lineup shall be presented to witnesses sequentially, with each person or photo presented separately and then removed before the next person or photo is viewed. If practicable an audio video or audio recording shall be made of the entire identification procedure and if not practicable a detailed written report stating the reason the recording could not be made. Provides instructions to the eyewitness to whom the identification procedure is presented. Sets forth procedures for conducting identification procedures. Provides remedies for failure to comply with identification procedures. Repeals current lineup and photo spread procedures. Repeals an expired pilot study on sequential lineup procedures.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by adding Sections 107A-0.1 and 107A-2 as follows:

(725 ILCS 5/107A-0.1 new)

Sec. 107A-0.1. Definitions.

For the purposes of this Article:

"Eyewitness" means a person whose identification by sight of another person may be relevant in a criminal proceeding.

"Filler" means a person or a photograph of a person who is not suspected of an offense and is included in a lineup.

"Independent administrator" means a lineup administrator who is not participating in the investigation of the criminal offense and is unaware of which person in the lineup is the suspect.

"Lineup" includes a photo lineup or live lineup.

"Lineup administrator" means the person who conducts a lineup.

"Live lineup" means a procedure in which a group of persons are displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.

"Photo lineup" means a procedure in which an array of photographs is displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.

(725 ILCS 5/107A-2 new)

Sec. 107A-2. Eyewitness identification procedure.

(a) Lineups conducted by State, county, and other local law enforcement officers shall meet all of the following requirements:

(1) A lineup shall be conducted by an independent administrator, unless it is not practical. In those instances where the use of an independent administrator is not practical, one of the alternative procedures described in subsection (c) of this Section shall be used.

(2) Persons or photos shall be presented to witnesses sequentially, with each person or photo presented to the witness separately, in a previously determined order, and removed after it is viewed before the next individual or photo is presented.

(3) Before a lineup, the eyewitness shall be instructed that:

(A) the perpetrator may or may not be presented in the lineup;

(B) the lineup administrator does not know the suspect's identity;

(C) the eyewitness should not feel compelled to make an identification;

(D) it is as important to exclude innocent persons as it is to identify the perpetrator; and

(E) the investigation will continue whether or not an identification is made.

(4) The eyewitness shall acknowledge the receipt of the instructions in writing. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the acknowledgement and shall also sign the acknowledgement.

(5) In a photo lineup, the photograph of the suspect shall be contemporary and, to the extent practicable, shall resemble the suspect's appearance at the time of the offense.

(6) The lineup shall be composed so that the fillers generally resemble the eyewitness's description of the perpetrator, while ensuring that the suspect does not unduly stand out from the fillers. In addition:

(A) All fillers selected shall resemble, as much as practicable, the eyewitness's description of the perpetrator in significant features, including any unique or unusual features.

(B) At least 5 fillers shall be included in a photo lineup, in addition to the suspect.

(C) At least 5 fillers shall be included in a live lineup, in addition to the suspect.

(D) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the current suspect participates shall be different from the fillers used in any prior lineups.

(7) If there are multiple eyewitnesses, the suspect shall be placed in a different position in the lineup or photo array for each eyewitness.

(8) In a lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect shall be visible or made known to the eyewitness.

(9) In a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants.

(10) In a live lineup, all lineup participants must be out of view of the eyewitness prior to the lineup.

(11) Only one suspect shall be included in a lineup.

(12) Nothing shall be said to the eyewitness regarding the suspect's position in the lineup or regarding anything that might influence the eyewitness's identification.

(13) Solely at the witness' request, a lineup administrator may present an person or photo to the witness an additional time but only after the witness has first viewed each person or photo one time.

(14) The lineup administrator shall obtain and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness's own words, as to the eyewitness's confidence level that the person identified in a given lineup is the perpetrator. The lineup administrator shall separate all witnesses in order to discourage witnesses from conferring with one another before or during the procedure. Each witness shall be given instructions regarding the identification procedures without other witnesses present.

(15) If the eyewitness identifies a person as the perpetrator, the lineup administrator shall continue to sequentially present the remaining persons or photos to the witness until the witness has viewed each person or photo.

(16) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning the person before the lineup administrator obtains the eyewitness's confidence level statement about the selection. There shall not be anyone present during the live lineup or photographic identification procedures who knows the suspect's identity, except the eyewitness and counsel as required by law.

(17) Unless it is not practical, a video record of live identification procedures shall be made. If a video record is not practical:

(A) the reasons shall be documented in an official report prepared prior to conducting the eyewitness identification procedure and verified under oath as provided in Section 2-605 of the Code of Civil Procedure attesting to the veracity of the report; and

(B) an audio record shall be made.

(18) If neither a video nor audio record are practical:

(A) the reasons shall be documented in an official report prepared prior to conducting the eyewitness identification procedure and verified under oath as provided in Section 2-605 of the Code of Civil Procedure attesting to the veracity of the report; and

(B) the lineup administrator shall make a written record of the lineup.

(19) Whether video, audio, or in writing, the record shall include the all of the following information:

(A) All identification and non-identification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness's confidence level statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation.

(B) The names of all persons present at the lineup.

(C) The date, time, and location of the lineup.

(D) The words used by the eyewitness in any identification, including words that describe the eyewitness's certainty of identification.

(E) Whether it was a photo lineup or live lineup and how many persons or photos were presented in the lineup.

(F) The sources of all photographs or persons used.

(G) In a photo lineup, the photographs themselves.

(H) In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.

(b) In addition to the recordings otherwise provided for in this Section, all lineups shall be photographed. These photographs, recordings, and if recordings were not practicable the detailed written explanation shall be disclosed to the accused and his or her defense counsel during discovery proceedings as provided in Illinois Supreme Court Rules. All photographs of suspects shown to an eyewitness during the photo spread shall be disclosed to the accused and his or her defense counsel during discovery proceedings as provided in Illinois Supreme Court Rules.

(c) If it is not practical for an independent administrator to conduct a lineup, the reasons for not using an independent administrator shall be made in an official report prepared prior to conducting the eyewitness identification procedure and verified under oath as provided in Section 2-605 of the Code of Civil Procedure attesting to the veracity of the report. In those instances where an independent administrator cannot be used, one of the following alternative methods shall be used:

(1) 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.

(2) 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.

(3) Any other procedures that achieve neutral administration.

(d) 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.

(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 this 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.

(725 ILCS 5/107A-5 rep.)

(725 ILCS 5/107A-10 rep.)

Section 10. The Code of Criminal Procedure of 1963 is amended by repealing Sections 107A-5 and 107A-10.