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 ) 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, 1 st 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/ x 242