Full Text of HB2763 101st General Assembly
HB2763ham001 101ST GENERAL ASSEMBLY | Rep. Frances Ann Hurley Filed: 2/28/2019
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| 1 | | AMENDMENT TO HOUSE BILL 2763
| 2 | | AMENDMENT NO. ______. Amend House Bill 2763 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended by changing Section 107A-2 as follows: | 6 | | (725 ILCS 5/107A-2) | 7 | | Sec. 107A-2. Lineup procedure. | 8 | | (a) All lineups shall be conducted using one of the | 9 | | following methods: | 10 | | (1) An independent administrator, unless it is not | 11 | | practical or if the eyewitness consents to having the | 12 | | lineup video recorded . | 13 | | (2) An automated computer program or other device that | 14 | | can automatically display a photo lineup to an eyewitness | 15 | | in a manner that prevents the lineup administrator from | 16 | | seeing which photograph or photographs the eyewitness is |
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| 1 | | viewing until after the lineup is completed. The automated | 2 | | computer program may present the photographs to the | 3 | | eyewitness simultaneously or sequentially, consistent with | 4 | | the law enforcement agency guidelines required under | 5 | | subsection (b) of this Section. | 6 | | (3) A procedure in which photographs are placed in | 7 | | folders, randomly numbered, and shuffled and then | 8 | | presented to an eyewitness such that the lineup | 9 | | administrator cannot see or know which photograph or | 10 | | photographs are being presented to the eyewitness until | 11 | | after the procedure is completed. The photographs may be | 12 | | presented to the eyewitness simultaneously or | 13 | | sequentially, consistent with the law enforcement agency | 14 | | guidelines required under subsection (b) of this Section. | 15 | | (4) Any other procedure that prevents the lineup | 16 | | administrator from knowing the identity of the suspected | 17 | | perpetrator or seeing or knowing the persons or photographs | 18 | | being presented to the eyewitness until after the procedure | 19 | | is completed. | 20 | | (b) Each law enforcement agency shall adopt written | 21 | | guidelines setting forth when, if at all, simultaneous lineups | 22 | | shall be conducted and when, if at all, sequential lineups | 23 | | shall be conducted. This subsection does not establish a | 24 | | preference for whether a law enforcement agency should conduct | 25 | | simultaneous lineups or sequential lineups. Whether and when to | 26 | | conduct simultaneous lineups or sequential lineups is at the |
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| 1 | | discretion of each law enforcement agency. If, after the | 2 | | effective date of this amendatory Act of the 98th General | 3 | | Assembly, a method of conducting a lineup different from a | 4 | | simultaneous or sequential lineup is determined by the Illinois | 5 | | Supreme Court to be sufficiently established to have gained | 6 | | general acceptance as a reliable method for eyewitness | 7 | | identifications and provides more accurate results than | 8 | | simultaneous or sequential lineups, a law enforcement agency | 9 | | may adopt written guidelines setting forth when, if at all, | 10 | | this different method of conducting lineups shall be used and, | 11 | | when feasible, the provisions of subsection (d) of this Section | 12 | | shall apply to the use of these methods. | 13 | | (c) On and after the effective date of this amendatory Act | 14 | | of the 98th General Assembly, there is no preference
as to | 15 | | whether a law enforcement agency conducts a live lineup or a | 16 | | photo lineup and to the extent that the common law directs | 17 | | otherwise, this direction is abrogated. | 18 | | (d) If a lineup administrator conducts a sequential lineup, | 19 | | the following shall apply: | 20 | | (1) Solely at the eyewitness's request, the lineup | 21 | | administrator may present a person or photograph to the | 22 | | eyewitness an additional time but only after the eyewitness | 23 | | has first viewed each person or photograph one time. | 24 | | (2) If the eyewitness identifies a person as a | 25 | | perpetrator, the lineup administrator shall continue to | 26 | | sequentially present the remaining persons or photographs |
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| 1 | | to the eyewitness until the eyewitness has viewed each | 2 | | person or photograph. | 3 | | (e) Before a lineup is conducted: | 4 | | (1) The eyewitness shall be instructed that: | 5 | | (A) if recording the lineup is practical, an audio | 6 | | and video recording of the lineup will be made for the | 7 | | purpose of accurately documenting all statements made | 8 | | by the eyewitness, unless the eyewitness refuses to the | 9 | | recording of the lineup, and that if a recording is | 10 | | made it will be of the persons in the lineup and the | 11 | | eyewitness; | 12 | | (B) the perpetrator may or may not be presented in | 13 | | the lineup; | 14 | | (C)
if an independent administrator is conducting | 15 | | the lineup, the independent administrator does not | 16 | | know the suspected perpetrator's identity or if the | 17 | | administrator conducting the lineup is not an | 18 | | independent administrator, the eyewitness should not | 19 | | assume that the lineup administrator knows which | 20 | | person in the lineup is the suspect; | 21 | | (D) the eyewitness should not feel compelled to | 22 | | make an identification; | 23 | | (E) it is as important to exclude innocent persons | 24 | | as it is to identify a perpetrator; and | 25 | | (F) the investigation will continue whether or not | 26 | | an identification is made. |
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| 1 | | (2)
The eyewitness shall acknowledge in writing the | 2 | | receipt of the instructions required under this subsection | 3 | | and, if applicable, the refusal to be recorded. If the | 4 | | eyewitness refuses to sign the acknowledgement, the lineup | 5 | | administrator shall note the refusal of the eyewitness to | 6 | | sign the acknowledgement and shall also sign the | 7 | | acknowledgement. | 8 | | (f) In conducting a lineup: | 9 | | (1) When practicable, the lineup administrator shall | 10 | | separate all eyewitnesses in order to prevent the | 11 | | eyewitnesses from conferring with one another before and | 12 | | during the lineup procedure. If separating the | 13 | | eyewitnesses is not practicable, the lineup administrator | 14 | | shall ensure that all eyewitnesses are monitored and that | 15 | | they do not confer with one another while waiting to view | 16 | | the lineup and during the lineup. | 17 | | (2) Each eyewitness shall perform the identification | 18 | | procedures without any other eyewitness present. Each | 19 | | eyewitness shall be given instructions regarding the | 20 | | identification procedures without other eyewitnesses | 21 | | present. | 22 | | (3) The lineup shall be composed to ensure that the | 23 | | suspected perpetrator does not unduly stand out from the | 24 | | fillers. In addition: | 25 | | (A) Only one suspected perpetrator shall be | 26 | | included in a lineup. |
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| 1 | | (B) The suspected perpetrator shall not be | 2 | | substantially different in appearance from the fillers | 3 | | based on the eyewitness's previous description of the | 4 | | perpetrator or based on other factors that would draw | 5 | | attention to the suspected perpetrator. | 6 | | (C) At least 5 fillers shall be included in a photo | 7 | | lineup, in addition to the suspected perpetrator. | 8 | | (D) When practicable, at least 5 fillers shall be | 9 | | included in a live lineup, in addition to the suspected | 10 | | perpetrator, but in no event shall there be less than 3 | 11 | | fillers in addition to the suspected perpetrator. | 12 | | (E) If the eyewitness has previously viewed a photo | 13 | | lineup or live lineup in connection with the | 14 | | identification of another person suspected of | 15 | | involvement in the offense, the fillers in the lineup | 16 | | in which the current suspected perpetrator | 17 | | participates shall be different from the fillers used | 18 | | in the prior lineups. | 19 | | (4) If there are multiple eyewitnesses, subject to the | 20 | | requirements in subsection (a) of this Section and to the | 21 | | extent possible, the suspected perpetrator shall be placed | 22 | | in a different position in the lineup or photo array for | 23 | | each eyewitness. | 24 | | (5) Nothing shall be communicated to the eyewitness | 25 | | regarding the suspected perpetrator's position in the | 26 | | lineup or regarding anything that may influence the |
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| 1 | | eyewitness's identification. | 2 | | (6) No writings or information concerning any previous | 3 | | arrest, indictment, or conviction of the suspected | 4 | | perpetrator shall be visible or made known to the | 5 | | eyewitness. | 6 | | (7) If a photo lineup, the photograph of the suspected | 7 | | perpetrator shall be contemporary in relation to the | 8 | | photographs of the fillers and, to the extent practicable, | 9 | | shall resemble the suspected perpetrator's appearance at | 10 | | the time of the offense. | 11 | | (8) If a live lineup, any identifying actions, such as | 12 | | speech, gestures, or other movements, shall be performed by | 13 | | all lineup participants. | 14 | | (9) If a live lineup, all lineup participants must be | 15 | | out of view of the eyewitness prior to the lineup. | 16 | | (10) The lineup administrator shall obtain and | 17 | | document any and all statements made by the eyewitness | 18 | | during the lineup as to the perpetrator's identity. When | 19 | | practicable, an audio or video recording of the statements | 20 | | shall be made. | 21 | | (11) If the eyewitness identifies a person as the | 22 | | perpetrator, the eyewitness shall not be provided any | 23 | | information concerning the person until after the lineup is | 24 | | completed. | 25 | | (12) Unless otherwise allowed under subsection (a) of | 26 | | this Section, there shall not be anyone present during a |
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| 1 | | lineup who knows the suspected perpetrator's identity, | 2 | | except the eyewitness and suspected perpetrator's counsel | 3 | | if required by law. | 4 | | (g) The lineup administrator shall make an official report | 5 | | of all lineups, which shall include all of the following | 6 | | information: | 7 | | (1) All identification and non-identification results | 8 | | obtained during the lineup, signed by the eyewitness, | 9 | | including any and all statements made by the eyewitness | 10 | | during the lineup as to the perpetrator's identity as | 11 | | required under paragraph (10) of subsection (f) of this | 12 | | Section. If the eyewitness refuses to sign, the lineup | 13 | | administrator shall note the refusal of the eyewitness to | 14 | | sign the results and shall also sign the notation. | 15 | | (2) The names of all persons who viewed the lineup. | 16 | | (3) The names of all law enforcement officers and | 17 | | counsel present during the lineup. | 18 | | (4) The date, time, and location of the lineup. | 19 | | (5) Whether it was a photo lineup or live lineup and | 20 | | how many persons or photographs were presented in the | 21 | | lineup. | 22 | | (6) The sources of all persons or photographs used as | 23 | | fillers in the lineup. | 24 | | (7) In a photo lineup, the actual photographs shown to | 25 | | the eyewitness. | 26 | | (8) In a live lineup, a photograph or other visual |
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| 1 | | recording of the lineup that includes all persons who | 2 | | participated in the lineup. | 3 | | (9) If applicable, the eyewitness's refusal to be | 4 | | recorded. | 5 | | (10) If applicable, the reason for any | 6 | | impracticability in strict compliance with this Section. | 7 | | (h) Unless it is not practical or the eyewitness refuses, a | 8 | | video record of all lineup procedures shall be made. | 9 | | (1) If a video record is not practical or the | 10 | | eyewitness refuses to allow a video record to be made: | 11 | | (A) the reasons or the refusal shall be documented | 12 | | in the official report required under subsection (g) of | 13 | | this Section; | 14 | | (B) an audio record shall be made, if practical; | 15 | | and | 16 | | (C) if a live lineup, the lineup shall be | 17 | | photographed. | 18 | | (2) If an audio record is not practical, the reasons | 19 | | shall be documented in the official report required under | 20 | | subsection (g) of this Section. | 21 | | (i) The
photographs, recordings, and the official report of | 22 | | the lineup required by this Section shall
be disclosed to | 23 | | counsel for the accused as provided by the Illinois Supreme | 24 | | Court Rules regarding discovery. All photographs
of suspected | 25 | | perpetrators shown to an eyewitness during a lineup shall be
| 26 | | disclosed to counsel for the accused as provided by the |
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| 1 | | Illinois Supreme Court Rules regarding discovery. To protect | 2 | | the identity of the eyewitness and the identities of law | 3 | | enforcement officers used as fillers in the lineup from being | 4 | | disclosed to third parties, the State's Attorney shall petition | 5 | | the court for a protective order under Supreme Court Rule 415 | 6 | | upon disclosure of the photographs or recordings to the counsel | 7 | | of the accused. | 8 | | (j) All of the following shall be available as consequences | 9 | | of compliance or noncompliance with the requirements of this | 10 | | Section: | 11 | | (1) Failure to comply with any of the requirements of | 12 | | this Section shall be a factor to be considered by the | 13 | | court in adjudicating a motion to suppress an eyewitness | 14 | | identification or any other motion to bar an eyewitness | 15 | | identification. These motions shall be in writing and state | 16 | | facts showing how the identification procedure was | 17 | | improper. This paragraph (1) makes no change to existing | 18 | | applicable common law or statutory standards or burdens of | 19 | | proof. | 20 | | (2) When warranted by the evidence presented at trial, | 21 | | the jury shall be instructed that it may consider all the | 22 | | facts and circumstances including compliance or | 23 | | noncompliance with this Section to assist in its weighing | 24 | | of the identification testimony of an eyewitness. | 25 | | (k) Any electronic recording made during a lineup that is | 26 | | compiled by any law enforcement agency as required by this |
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| 1 | | Section for the purposes of fulfilling the requirements of this | 2 | | Section shall be confidential and exempt from public inspection | 3 | | and copying, as provided under Section 7 of the Freedom of | 4 | | Information Act, and the recording shall not be transmitted to | 5 | | any person except as necessary to comply with this Section.
| 6 | | (Source: P.A. 98-1014, eff. 1-1-15 .)".
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