NEW SB-923 Bill Seeks to Adopt Uniform Regulations for Photo Lineups and Live Eyewitness Lineups to Increase Accuracy of Suspect Identifications

On May 30, 2018, the Senate passed SB-923 and ordered the Bill to the Assembly for consideration.[1] SB-923 legislation would require all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses in an effort to ensure reliable and accurate suspect identifications. SB-923 would require that the regulations adopted by law enforcement and prosecutorial entities comply with specified requirements such as requiring that the eyewitness provide the description of the perpetrator of the incident prior to conducting the identification procedure and as close in time to the incident as possible.

According to the text of SB-923, “[e]yewitness misidentification is the leading contributor to wrongful convictions proven with DNA evidence nationally.” By adopting “best practices” for conducting identifications, the Legislature intends to reduce the risk of misidentifications. In seeking to enact SB-923, the Legislature is recognizing the importance in valid eyewitness identifications as evidence for solving crimes and securing rightful convictions.

If enacted, SB-923 would add Section 859.7 to the Penal Code. Penal Code section 859.7 would require that the lineup regulations adopted by law enforcement agencies and prosecutorial entities comply with the following minimum requirements:

1. Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall provide the description of the perpetrator of the offense.

2. The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.

3. If applicable, the investigator shall state in writing the reason the presentation of the lineup was not conducted using blind administration or blinded administration.

4. An eyewitness shall be instructed of the following, prior to any identification procedure:

a. The perpetrator might not be among the persons in the identification procedure.

b. The eyewitness should not feel compelled to make an identification.

c. An identification or failure to make an identification will not end the investigation.

5. The identification procedure shall be composed so that the fillers generally fit the description of the suspected perpetrator.

6. In a photo lineup, writings or information concerning any previous arrest of the suspected perpetrator must not be visible to the witness.

7. Only one suspected perpetrator should be included in any identification procedure.

8. All witnesses must be separated when viewing an identification procedure.

9. Nothing should be said to the eyewitness that might influence his or her identification.

10. If the eyewitness makes an identification of a suspected perpetrator, the following apply:

a. Investigator must immediately inquire into the eyewitness’ confidence level.

b. Information regarding the identified person shall not be provided to the eyewitness until the confidence level is documented.

c. Law enforcement must not, at any time, validate the eyewitness identification.

11. An electronic recording must be made that includes both audio and visual representations of the identification procedures.

SB-923 is currently being referred through the Assembly and is subject to further amendment prior to potential enactment. According to the language of SB-923, “[i]n California, eyewitness misidentification played a role in every DNA-based exoneration in the state.” If passed, this Bill is aimed at reducing further false identifications, which contribute to wrongful convictions.

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[1] For full-text of SB-923 visit the following link:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB923

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