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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 200
(By Senator Laird)
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[Introduced February 18, 2013; referred to the Committee on the
Judiciary .]
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A BILL to amend and reenact §62-1E-1, §62-1E-
2 and §62-1E-
3 of the
Code of West Virginia, 1931, as amended, all relating to
eyewitness identification
; defining terms; increasing
requirements for performing an eyewitness identification;
authorizing mandatory legislative rule-making authority for
creating additional requirements and expanding upon current
requirements in all aspects of eyewitness identification;
requiring the legislative rules to include consequences for
noncompliance, training requirements, policy requirements and
the creation of a model policy; stating that the rules shall
be created by the Governor's Committee on Crime, Delinquency
and Correction in consultation with certain eyewitness
identification practitioners and experts; and requiring the
State Police to create certain educational materials associated with eyewitness identification.
Be it enacted by the Legislature of West Virginia:
That
§62-1E-1, §62-1E-
2 and §62-1E-
3 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 1E. EYEWITNESS IDENTIFICATION ACT.
§62-1E-1. Definitions.
For the purposes of this article:
(1) "Blind" means the administrator does not know the identity
of the suspect.
____(2) "Blinded" means the lineup administrator may know the
identity of the suspect, but does not know which lineup member is
being viewed by the eyewitness.
____(1) (3) "Eyewitness" means a person whose identification of
another person may be relevant in a criminal proceeding.
(4) "Filler" means a person in a lineup who is not a suspect,
but whose appearance resemble the eyewitness's description of the
suspect.
____(2) (5) "Lineup" means a live lineup or photographic array of
persons of similar appearance photo lineup.
____(3) (6) "Lineup administrator" means the person who conducts
a lineup.
(4) (7) "Live lineup" means a procedure in which a group of people is displayed to an eye witness for the purpose of
determining if the eyewitness is able to identify identifies the
suspect as the perpetrator of a crime.
(5) (8) "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 identifies the
suspect as the perpetrator of a crime.
(9) "Showup" means an identification procedure in which an
eyewitness is presented with a single suspect for the purpose of
determining whether the eyewitness identifies this individual as
the perpetrator.
§62-1E-2. Eyewitness identification procedures.
(a) Before a lineup, at a minimum, the eyewitness should be
given the following three instructions:
(1) That the perpetrator might or might not be present in the
lineup;
(2) That the eyewitness is not required to make an
identification; and
(3) That it is as important to exclude innocent persons as it
is to identify the perpetrator; and
____(4) Any other instructions required by the legislative rules
authorized in subsection (c) of this section.
(b) Law-enforcement officers should make a written record of a lineup, including, at a minimum, the following information:
(1) The date, time and location of the lineup.
(2) The names of every person in the lineup, if known, and all
other persons present at the lineup.
(3) The words used by the eyewitness in any identification,
including words that describe the eyewitness' certainty or
uncertainty in the identification at the time the identification is
made.
(4) Whether it was a photo lineup or live lineup.
(5) The number of photos or individuals that were presented in
the lineup.
(6) Whether the lineup administrator knew which person in the
lineup was the suspect.
(7) Whether, before the lineup, the eyewitness was instructed
that the perpetrator might or might not be presented in the lineup.
(8) Whether the lineup was simultaneous or sequential.
(9) The signature, or initials, of the eyewitness, or notation
if the eyewitness declines or is unable to sign.
(10) A video of the lineup and the eyewitness' response may be
included.
(11) Any other information required by the legislative rules
authorized in subsection (c) of this section.
(c) The Governor's committee on crime, delinquency and correction shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to further detail and expand upon the required
process for eyewitness identification contained in this section.
The rules shall address the following, at a minimum:
____(1) Any requirements for an officer to follow prior to
performing a lineup or showup;
____(2) Any instructions that an officer shall give to the
eyewitness prior to conducting a lineup or showup;
____(3) Any requirements for an officer to follow during the
performance of a lineup or showup, including, but not limited to,
requirements to effectuate sequential presentation, blind or
blinded lineups, and the number of required fillers to be used;
____(4) Any requirements for an officer to follow when there are
multiple eyewitnesses or multiple suspects;
____(5) Any requirements specific to photo lineups or showups;
____(6) Any requirements for what information an officer should
make a written record of before, during and after a lineup or
showup;
____(7) Any consequences of compliance or noncompliance with this
article and the legislative rules authorized by this section;
____(8) Training requirements for eyewitness identification
through both the curriculum at the State Police Academy, or its equivalent, and required in-service training hours for law-
enforcement officers;
____(9) A requirement that all West Virginia law-enforcement
agencies, as defined in section 1, article 29, chapter 30 of this
code, conducting eyewitness identification procedures shall adopt
a specific written policy for conducting photo lineups, live
lineups and showups that comply with this article and the
legislative rules authorized by this section; and
____(10) A model policy that will serve as an example of what will
satisfy the policy requirement stated in subdivision (8) of this
subsection.
There is hereby created a task force to study and identify best
practices for eyewitness identification. The task force consists
of the following members:
(1) The Director of Criminal Justice Services, or his or her
designee, who shall chair, without voting, the task force;
(2) The Superintendent of the State Police, or his or her
designee;
(3) A victim advocate to be designated by the Director of
Criminal Justice Services;
(4) The Director of Public Defender Services, or his or her
designee;
(5) The Executive Director of the West Virginia prosecuting attorneys Institute, or his or her designee;
(6) A circuit judge designated by the Chief Justice of the
West Virginia Supreme Court of Appeals;
(7) Two professionals in the field of forensic sciences, one
to be designated by the Executive Director of the West Virginia
prosecuting attorneys Institute and the other to be designated by
the Director of Public Defender Services;
(8) The President of the West Virginia Fraternal Order of
Police, or his or her designee;
(9) A representative of the Innocence Project of the West
Virginia University College of Law;
(10) Two licensed practitioners of criminal law, one to be
designated by the Executive Director of the West Virginia
prosecuting attorneys Institute and the other to be designated by
the Director of Public Defender Services;
(11) The President of the West Virginia Sheriff's Association,
or his or her designee.
(d) The task force, or their assigned designees, shall serve
without compensation, and Governor's committee on crime,
delinquency and correction's law-enforcement training subcommittee
shall develop the legislative rules authorized in subsection (c) of
this section in consultation with eyewitness identification
practitioners and experts, including, but not limited to, representatives of the West Virginia Prosecuting Attorneys
Institute, the West Virginia Public Defender Service, the West
Virginia Judiciary and the West Virginia Innocence Project of the
West Virginia University College of Law. shall develop recommended
guidelines for policies, procedures and training with respect to
the collection and handling of eyewitness evidence in criminal
investigations by law-enforcement agencies that are consistent with
the reliable evidence supporting best practices. The purpose of
the guidelines is to provide law-enforcement agencies with
information regarding eyewitness identification policies and
procedures to increase the accuracy of the crime investigation
process.
(e) Such guidelines shall include procedures for the
administration of live and photographic lineups and instructions
that will increase the accuracy of eyewitness identifications. The
task force, in developing these guidelines, shall consider:
(1) The use of blind administration of live and photo lineups;
(2) The issuance of specific instructions to the eyewitness
before and during the identification procedure;
(3) The number and selection of fillers to be used in live and
photo lineups;
(4) Sequential versus simultaneous presentation of lineup
members;
(5) Whether only one suspect should be included in any live or
photo lineup;
(6) The timing of when the administrator should request and
record the eyewitness's statement of his or her confidence in his
or her selection;
(7) Whether to refrain from providing of any confirmatory
information to the eyewitness;
(8) The visual recording of the lineup and its administration;
(9) The video or audio recording of the lineup procedure;
(10) Any other policies or procedures the task force
determines to be relevant; and
(11) What training, if any, should be made available to law-
enforcement personnel in the use of these procedures.
(f) Not later than December 15, 2008, the task force shall
submit a report on the guidelines developed and recommendations
concerning their use to the standing committees of the Legislature
having cognizance of matters relating to criminal law and
procedure. Minority reports may also be issued. The task force
shall terminate on December 15, 2009, unless earlier terminated by
legislative action.
§62-1E-3. Training of law-enforcement officers.
The Superintendent of State Police, along with the Governor's
committee on crime, delinquency and correction's law-enforcement training subcommittee, may shall create educational materials and
may conduct training programs to instruct law-enforcement officers
and recruits how to conduct lineups in compliance with this section
article and the legislative rules authorized by subsection (c) of
section two of this article.
NOTE: The purpose of this bill is to update the eyewitness
identification act by authorizing legislative rules for the
creation of a more detailed and successful eyewitness
identification process.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.