1Amending Titles 18 (Crimes and Offenses), 42 (Judiciary and
2Judicial Procedure) and 44 (Law and Justice) of the
3Pennsylvania Consolidated Statutes, further providing for
4expungement; providing for informant testimony; further
5providing for exceptions to sovereign immunity; adding
6provisions relating to wrongful conviction and imprisonment;
7and providing for recording of custodial interrogations and
8for eyewitness identifications.

9The General Assembly of the Commonwealth of Pennsylvania
10hereby enacts as follows:

11Section 1. Section 9122(a) of Title 18 of the Pennsylvania
12Consolidated Statutes, amended October 25, 2012 (P.L.1655,
13No.204), is amended to read:

14§ 9122. Expungement.

15(a) Specific proceedings.--Criminal history record
16information shall be expunged in a specific criminal proceeding
17when:

18(1) no disposition has been received or, upon request
19for criminal history record information, no disposition has
20been recorded in the repository within 18 months after the

1date of arrest and the court of proper jurisdiction certifies
2to the director of the repository that no disposition is
3available and no action is pending. Expungement shall not
4occur until the certification from the court is received and
5the director of the repository authorizes such expungement;

6(2) a court order requires that such nonconviction data
7be expunged; [or]

8(3) a person 21 years of age or older who has been
9convicted of a violation of section 6308 (relating to
10purchase, consumption, possession or transportation of liquor
11or malt or brewed beverages), which occurred on or after the
12day the person attained 18 years of age, petitions the court
13of common pleas in the county where the conviction occurred
14seeking expungement and the person has satisfied all terms
15and conditions of the sentence imposed for the violation,
16including any suspension of operating privileges imposed
17pursuant to section 6310.4 (relating to restriction of
18operating privileges). Upon review of the petition, the court
19shall order the expungement of all criminal history record
20information and all administrative records of the Department
21of Transportation relating to said conviction[.]; or

22(4) an individual:

23(i) is found by the Commonwealth Court under 42
24Pa.C.S. Ch. 85 Subch. D (relating to claims for wrongful
25conviction and imprisonment) to have been wrongfully
26convicted and imprisoned;

27(ii) has agreed to a favorable written settlement
28for a civil claim relating to a wrongful conviction and
29imprisonment; or

30(iii) has obtained a civil judgment that establishes

1wrongful conviction and imprisonment.

2* * *

3Section 2. Title 42 is amended by adding a section to read:

4§ 5919.1. Informant testimony.

5(a) Disclosures.--In any case in which the prosecution
6attempts to introduce evidence of incriminating statements made
7by the accused to an informant or overheard by an informant, the
8prosecution shall timely disclose all of the following to the
9defense:

10(1) The intention of the prosecution to introduce the
11testimony of an informant.

12(2) The complete criminal history of an informant.

13(3) Any deal, promise, inducement or benefit which the
14offering party has made or will make to the informant.

15(4) The substance of the testimony to be given by the
16informant, including all statements made by the accused and
17heard by the informant.

18(5) The time and place of each statement, the time and
19place of its disclosure to law enforcement officials and the
20names of all persons who were present when the statement was
21made.

22(6) Whether, at any time, the informant recanted his
23testimony and, if so, the time and place of the recantation,
24the nature of the recantation and the names of the persons
25who were present at the recantation.

26(7) Other cases in which the informant testified and
27whether the informant received any promise, inducement or
28benefit in exchange for or after that testimony.

29(8) Any other information relevant to the credibility of
30the informant.

1(b) Hearing.--In any capital case in which the prosecution
2attempts to introduce testimony of incriminating statements made
3by the accused to an informant or overheard by an informant, the
4court shall conduct a hearing before the introduction of the
5testimony to determine whether the testimony is reliable. If the
6prosecution fails to show by a preponderance of the evidence
7that the statement is reliable, the court may not allow the
8testimony to be heard at trial. At this hearing, the court shall
9consider the factors enumerated in subsection (a) as well as any
10other factors relating to reliability. A hearing under this
11subsection is not required if the defendant waives the right to
12the hearing or if an electronic recording was made of the
13statement of the accused.

14(c) Applicability.--This section applies to informant
15evidence obtained in the course of the investigation of a
16felony.

17(d) Definitions.--As used in this section the following
18words and phrases shall have the meanings given to them in this
19subsection:

20"Electronic recording." An audio or audiovisual recording of
21a statement.

22"Informant." An individual whom the prosecution offers as a
23witness to testify about admissions of an accused that were made
24to or overheard by the informant while both the informant and
25the accused were incarcerated in a penal institution.

26Section 3. Section 8521(a) of Title 42 is amended to read:

27§ 8521. Sovereign immunity generally.

28(a) General rule.--Except as otherwise provided in this
29subchapter and Subchapter D (relating to claims for wrongful 
30conviction and imprisonment), no provision of this title shall

1constitute a waiver of sovereign immunity for the purpose of 1
2Pa.C.S. section 2310 (relating to sovereign immunity reaffirmed;
3specific waiver) or otherwise.

4* * *

5Section 4. Section 8522(b) of Title 42 is amended by adding
6a paragraph to read:

7§ 8522. Exceptions to sovereign immunity.

8* * *

9(b) Acts which may impose liability.--The following acts by
10a Commonwealth party may result in the imposition of liability
11on the Commonwealth and the defense of sovereign immunity shall
12not be raised to claims for damages caused by:

13* * *

14(10) Wrongful conviction and imprisonment.--Wrongful
15conviction and imprisonment for which claims may be brought
16under Subchapter D (relating to claims for wrongful
17conviction and imprisonment).

18* * *

19Section 5. Chapter 85 of Title 42 is amended by adding a
20subchapter to read:

21SUBCHAPTER D

22CLAIMS FOR WRONGFUL CONVICTION AND IMPRISONMENT

23Sec.

248581. Eligibility.

258582. Statement of claim and basis of award.

268583. Commonwealth Court.

278584. Presentation of claim.

288585. Damages.

298586. Report and order.

308587. Notice.

18588. Statute of limitations.

2§ 8581. Eligibility.

3Any person convicted and subsequently imprisoned for one or
4more crimes that the person did not commit and who has been
5released from prison and is not subject to retrial, or the heirs
6of such person if the person is deceased, may present a claim
7for damages against the Commonwealth. Other than credit for time
8served, a claimant is not entitled to compensation under this
9subchapter for any portion of a sentence spent incarcerated
10during which the claimant was also serving a consecutive or
11concurrent sentence for another crime to which this subchapter
12does not apply. The acceptance by the claimant of any judicial
13award, compromise or settlement shall be in writing and shall,
14except when procured by fraud, be final and conclusive on the
15claimant and completely bar any further action by the claimant
16against the Commonwealth for the same subject matter.

17§ 8582. Statement of claim and basis of award.

18(a) Evidence of claim.--To present a claim for wrongful
19conviction and imprisonment, the claimant must establish that:

20(1) He has been convicted of one or more crimes and
21subsequently sentenced to a term of imprisonment and has
22served all or any part of the sentence.

23(2) His actual innocence has been established by:

24(i) being pardoned by the Governor for the crime or
25crimes for which he was sentenced, and which are the
26basis for the claim, on the grounds that the crime or
27crimes were either not committed at all or, if committed,
28were not committed by the defendant;

29(ii) having the judgment of conviction of the
30claimant reversed or vacated and the accusatory

1instrument dismissed if the judgment of conviction was
2reversed or vacated or the accusatory instrument was
3dismissed on grounds consistent with innocence; or

4(iii) if a new trial was ordered, either being found
5not guilty at the new trial or not being retried and the
6accusatory instrument dismissed.

7(b) Basis of award.--To obtain a judgment in the claimant's
8favor, the claimant must demonstrate that:

9(1) The claimant was convicted of one or more crimes and
10subsequently sentenced to a term of imprisonment and has
11served all or any part of the sentence.

12(2) By clear and convincing evidence his actual
13innocence has been established under subsection (a)(2).

14§ 8583. Commonwealth Court.

15Proceedings before the court shall be governed by rules
16established by the court, which shall emphasize, to the greatest
17extent possible, informality of proceedings. No claimant shall
18be required to be represented or accompanied by an attorney.

19§ 8584. Presentation of claim.

20All claims of wrongful conviction and imprisonment shall be
21presented to and heard by the Commonwealth Court. Upon
22presentation of a claim under section 8582 (relating to
23statement of claim and basis of award), the court shall fix a
24time and place to hear the claim. At least 15 days prior to the
25time fixed for the hearing, the court shall mail notice thereof
26to the claimant and to the district attorney in the district
27where the claimant was prosecuted for the crimes which serve as
28the basis for this claim. The district attorney may offer
29evidence and argue in opposition to the claim for damages. If
30the claimant was prosecuted by the Office of Attorney General,

1then that office, rather than the district attorney, must be
2notified that it may oppose the claim under this section.

3§ 8585. Damages.

4If the Commonwealth Court finds that the claimant was
5wrongfully convicted and imprisoned, it may award damages as
6follows:

7(1) A minimum of $50,000 for each year of incarceration,
8as adjusted annually to account for inflation from the
9effective date of this section, and prorated for partial
10years served.

11(2) In a lump sum or as an annuity as chosen by the
12claimant.

13(3) Compensation for any reasonable reintegrative
14services and mental and physical health care costs incurred
15by the claimant for the time period between his release from
16incarceration and the date of his award.

17(4) Reasonable attorney fees calculated at 10% of the
18damage award plus expenses. Exclusive of expenses, these fees
19may not exceed $75,000, as adjusted annually to account for
20inflation from the effective date of this section, unless the
21court approves an additional amount for good cause. These
22fees may not be deducted from the compensation due the
23claimant nor may his counsel receive additional fees from the
24client for this matter.

25(5) Compensation to those entitled to child-support
26payments owed by the claimant that became due, and interest
27on child-support arrearages that accrued during the time the
28claimant served in prison but were not paid. Such
29compensation is to be provided out of the total cash award to
30the claimant under paragraph (1).

1(6) In any case for which compensation is authorized by
2this subchapter, the payment of compensation may be:

3(i) to or for the benefit of the claimant; or

4(ii) in the case of death of the claimant, to or for
5the benefit of any one or more of the heirs at law of the
6claimant who at the time of the claimant's demise were
7dependent upon the claimant for support.

8(7) To decide damages, the Commonwealth Court shall
9consider all circumstances surrounding the claim, including,
10but not limited to, the length of the claimant's wrongful
11incarceration, any injuries the claimant sustained while
12incarcerated, any other need for financial aid and any other
13relevant matters. Insofar as practical, the Commonwealth
14Court shall formulate standards for uniform application in
15recommending compensation.

16(8) The damage award is not subject to any cap
17applicable to private parties in civil lawsuits.

18(9) The damage award may not be offset by any expenses
19incurred by the Commonwealth or any political subdivision of
20the Commonwealth, including, but not limited to, expenses
21incurred to secure the claimant's custody or to feed, clothe
22or provide medical services for the claimant, nor may the
23court offset the value of any services or reduction in fees
24for services or the value thereof to be provided to the
25claimant that may be awarded to the claimant under this
26section.

27(10) The award of damages shall include reimbursement
28for any statutorily mandated and court-assessed costs, fines,
29restitution and fees to the extent that they have been
30collected.

1(11) A decision of the Commonwealth Court on behalf of
2the claimant shall result in the automatic expungement of the
3criminal history record of the claimant as it relates to the
4crimes that form the basis of this claim. As part of its
5decision, the court shall specifically direct the
6Pennsylvania State Police and the prosecuting district
7attorney of the original crimes that form the basis of this
8claim to expunge the record consistent with this paragraph.
9Accordingly, the court shall forward a copy of its decision
10to the Pennsylvania State Police and to the prosecuting
11district attorney.

12(12) The damage award is not subject to any Commonwealth
13taxes.

14§ 8586. Report and order.

15The Commonwealth Court shall issue a ruling and order and
16provide the State Treasurer a statement of the total
17compensation due and owing to the claimant from the
18Commonwealth.

19§ 8587. Notice.

20(a) Court.--A court granting judicial relief as described in
21section 8582(a) (relating to statement of claim and basis of
22award) shall provide a copy of this subchapter to the individual
23seeking such relief at the time the court determines that the
24claimant's claim is likely to succeed. The individual shall be
25required to acknowledge his receipt of a copy of this subchapter
26in writing on a form established by the Supreme Court. The
27acknowledgment shall be entered on the docket by the court and
28shall be admissible in any proceeding filed by a claimant under
29this subchapter.

30(b) Board of Pardons.--Upon the issuance of a full pardon on

1or after the effective date of this subchapter, the Board of
2Pardons shall provide a copy of this subchapter to an individual
3when pardoned as described in section 8582(a). The individual
4shall be required to acknowledge his receipt of a copy of this
5subchapter in writing on a form established by the board, which
6shall be retained on file by the board as part of its official
7records and shall be admissible in any proceeding filed by a
8claimant under this subchapter.

9(c) Failure to provide notice.--In the event a claimant
10granted judicial relief or a full pardon on or after the
11effective date of this subchapter shows he did not properly
12receive a copy of the information required by this section, the
13claimant shall receive a one-year extension on the two-year time
14limit provided in section 8588 (relating to statute of
15limitations).

16(d) Notice by Supreme Court.--The Supreme Court shall make
17reasonable attempts to notify all persons who were granted
18judicial relief as described in section 8582(a), prior to the
19enactment of this subchapter, of their rights under this
20subchapter.

21§ 8588. Statute of limitations.

22An action for compensation brought by a wrongfully convicted
23person under this subchapter shall be commenced within two years
24after either the grant of a pardon or the grant of judicial
25relief and satisfaction of other conditions described in section
268582 (relating to statement of claim and basis of award). Any
27action by the Commonwealth challenging or appealing the grant of
28judicial relief tolls the two-year period. Persons convicted,
29incarcerated and released from custody prior to the effective
30date of this subchapter shall commence an action under this

1subchapter within five years of the effective date.

2Section 6. Title 44 is amended by adding a chapter to read:

3CHAPTER 83

4INVESTIGATION

5Subchapter

6A. Recording of Interrogations

7B. Eyewitness Identifications

8SUBCHAPTER A

9RECORDING OF INTERROGATIONS

10Sec.

118301. Definitions.

128302. Recording requirement.

138303. Applicability.

148304. Wiretap exception to recording.

158305. Sanctions.

168306. Handling and preservation of electronic recordings.

17§ 8301. Definitions.

18The following words and phrases when used in this subchapter
19shall have the meanings given to them in this section unless the
20context clearly indicates otherwise:

21"Custodial interrogation." An interview in which a question,
22statement or other conduct is reasonably likely to elicit an
23incriminating response and occurs while the individual
24interviewed is in custody.

25"Custody." A state of affairs in which the individual who is
26interviewed by a law enforcement officer is physically deprived
27of his freedom in any significant way or is placed in a
28situation in which he reasonably believes his freedom of action
29or movement is restricted.

30"Electronic recording." An audiovisual or audio recording of

1a statement.

2"Interview." A conversation between a law enforcement
3officer and another individual that takes place in the course of
4a criminal investigation.

5"Law enforcement agency." A government entity whose
6responsibilities include enforcement of criminal laws or the
7investigation of suspected criminal activity.

8"Law enforcement officer." An officer or other employee of a
9law enforcement agency whose personal responsibilities include
10enforcement of criminal laws or the investigation of suspected
11criminal activity.

12"Statement." An oral, written, sign language or nonverbal
13communication that takes place during a custodial interrogation.

14§ 8302. Recording requirement.

15An electronic recording must be made of any custodial
16interrogation relating to the investigation of the following
17offenses:

18(1) An offense under 18 Pa.C.S. Ch. 25 (relating to
19criminal homicide).

20(2) An offense classified as a felony under 18 Pa.C.S.
21Ch. 31 (relating to sexual offenses).

22(3) An offense under 18 Pa.C.S. Ch. 37 (relating to
23robbery).

24(4) An offense classified as a felony under 18 Pa.C.S. §
253301 (relating to arson and related offenses).

26(5) An attempt under 18 Pa.C.S. § 901 (relating to
27criminal attempt) or conspiracy under 18 Pa.C.S. § 903
28(relating to criminal conspiracy) to commit an offense
29referred to in paragraph (1), (2), (3) or (4).

30§ 8303. Applicability.

1(a) Exceptions.--Section 8302 (relating to recording
2requirement) does not apply if the court finds all of the
3following:

4(1) That the statement is admissible as evidence.

5(2) That the statement is proven by a preponderance of
6the evidence to have been made voluntarily and to be
7reliable.

8(3) That a law enforcement officer made a
9contemporaneous record of the reason for not making an
10electronic recording of the statement, or it was proven by a
11preponderance of the evidence that it was not feasible to
12make such a record. The reason provided must be consistent
13with paragraph (4).

14(4) That it is proven by a preponderance of the evidence
15that one or more of the following circumstances existed at
16the time of the custodial interrogation:

17(i) The statement was made spontaneously and was not
18made in response to a question.

19(ii) The statement was made spontaneously in the
20course of the routine intake processing of the
21individual.

22(iii) The law enforcement officer in good faith
23failed to make an electronic recording of the custodial
24interrogation because the officer inadvertently failed to
25operate the recording equipment properly, or without the
26officer's knowledge, the recording equipment
27malfunctioned or stopped operating.

28(iv) The custodial interrogation took place in
29another jurisdiction and was conducted by an official of
30that jurisdiction in compliance with the law of that

1jurisdiction.

2(v) The law enforcement officers conducting or
3contemporaneously observing the custodial interrogation
4reasonably believed that the making of an electronic
5recording would jeopardize the safety of the individual,
6a law enforcement officer, a confidential informant or
7another individual.

8(vi) The law enforcement officers conducting or
9contemporaneously observing the custodial interrogation
10reasonably believed that the crime for which the
11individual was subjected to custodial interrogation was
12not among those listed in section 8302.

13(vii) Exigent circumstances existed which prevented
14or made infeasible the making of an electronic recording
15of the custodial interrogation.

16(viii) Before the custodial interrogation, the
17individual to be interrogated indicated that he would
18participate only if the custodial interrogation were not
19electronically recorded and, if feasible, the agreement
20to participate without recording were electronically
21recorded.

22(b) Exclusions.--Section 8302 does not apply to a statement
23if any of the following apply:

24(1) The statement is offered as evidence solely to
25impeach or rebut the testimony of the individual interrogated
26and not as substantive evidence.

27(2) The custodial interrogation takes place before a
28grand jury or court of record.

29§ 8304. Wiretap exception to recording.

30Notwithstanding 18 Pa.C.S. Ch. 57 (relating to wiretapping

1and electronic surveillance), a law enforcement officer engaged
2in custodial interrogation under section 8302 (relating to
3recording requirement) may record that custodial interrogation
4without consent or knowledge of that individual being held or
5interrogated. A law enforcement officer may nevertheless obtain
6an individual's consent to recording or inform that individual
7that the custodial interrogation will be recorded.

8§ 8305. Sanctions.

9Except as provided in section 8303 (relating to
10applicability), if the statement is obtained in violation of the
11terms of this subchapter and is otherwise admissible, the trial
12court shall instruct the jury that a State statute required the
13recording of the statement to ensure a more reliable
14determination at trial as to the circumstances and substance of
15any statement made by the defendant, that the police failed to
16abide by the terms of the statute and therefore no recording is
17available for the jury and that the jury may take into account
18the failure to record the statement in determining what weight
19to give the statement.

20§ 8306. Handling and preservation of electronic recordings.

21(a) Handling.--The law enforcement agency shall clearly
22identify and catalog all electronic recordings.

23(b) Preservation.--

24(1) If a juvenile or criminal proceeding is brought
25against a person interrogated in an electronically recorded
26custodial interrogation, law enforcement personnel shall
27preserve the electronic recording until all appeals,
28postconviction and habeas corpus proceedings by the
29individual interrogated are concluded or the time within
30which such proceedings must be brought has expired.

1(2) If a juvenile or criminal proceeding is not brought
2against an individual interrogated in an electronically
3recorded custodial interrogation, law enforcement personnel
4shall preserve the electronic recording until all applicable
5Federal and State statutes of limitations bar prosecution of
6the individual.

7SUBCHAPTER B

8EYEWITNESS IDENTIFICATIONS

9Sec.

108311. Short title of subchapter.

118312. Legislative purpose.

128313. Definitions.

138314. Eyewitness identification procedures.

148315. Trial practice.

158316. Dissemination of identification procedures.

16§ 8311. Short title of subchapter.

17This subchapter shall be known and may be cited as the
18Eyewitness Identification Improvement Act.

19§ 8312. Legislative purpose.

20The purpose of this subchapter is to help solve crime,
21convict the guilty and protect the innocent in criminal
22proceedings by improving procedures for eyewitness
23identification of suspected perpetrators while ensuring that
24police can promptly, safely and effectively investigate crimes.

25§ 8313. Definitions.

26The following words and phrases when used in this subchapter
27shall have the meanings given to them in this section unless the
28context clearly indicates otherwise:

29"Administrator." The individual who conducts a live or photo
30lineup.

1"Blind lineup." A lineup where either of the following
2occurs:

3(1) In the case of a live or photo lineup, the
4administrator does not know the identity of the suspect.

5(2) In the case of a photo lineup in which the
6administrator knows the identity of the suspect, the
7administrator does not know which photograph the eyewitness
8is viewing at any given time.

9"Eyewitness." An individual who observes another individual
10at or near the scene of a criminal offense.

11"Filler." An individual who is not suspected of an offense
12and is included in an identification procedure.

13"Identification procedure." An investigative procedure in
14which a law enforcement official requests an eyewitness to
15attempt to identify an individual who perpetrated a criminal
16offense. The term includes a live lineup, a photo lineup or a
17show-up.

18"Law enforcement agency." A governmental entity whose
19responsibilities include enforcement of criminal laws or the
20investigation of suspected criminal activity.

21"Law enforcement officer." An officer or other employee of a
22law enforcement agency whose personal responsibilities include
23enforcement of criminal laws or the investigation of suspected
24criminal activity.

25"Live lineup." An identification procedure in which several
26individuals, including the suspect and fillers, are displayed to
27an eyewitness for the purpose of determining whether the
28eyewitness identifies the suspect as the perpetrator.

29"Photo lineup." An identification procedure in which an
30array of photographs, comprising a photograph of the suspect and

1photographs of fillers, is displayed to an eyewitness either in
2hard copy form or via computer for the purpose of determining
3whether the eyewitness identifies the suspect as the
4perpetrator.

5"Show-up." An identification procedure in which an
6eyewitness is presented with a suspect for the purpose of
7determining whether the eyewitness identifies the individual as
8the perpetrator.

9"Suspect." The individual believed by law enforcement
10investigators to be the possible perpetrator of the crime.

11§ 8314. Eyewitness identification procedures.

12(a) General rule.--An eyewitness identification procedure
13conducted by a law enforcement agency must comply with this
14section.

15(b) Description of the perpetrator.--Except as provided in
16subsection (h)(1), the eyewitness's description of the
17perpetrator and the circumstances under which the eyewitness
18observed the perpetrator, in the eyewitness's own words, shall
19be obtained and documented immediately prior to a live or photo
20lineup, unless such a description was recorded or otherwise
21documented by law enforcement personnel before the commencement
22of the identification procedure.

23(c) Blind lineup administration.--Subject to the exceptions
24in this subsection, a blind lineup shall be conducted. If the
25lineup is not blind, the administrator shall state in writing
26the reason that a blind lineup was not used. A blind lineup need
27not be conducted if any of the following apply:

28(1) A blind lineup is not practicable under the
29circumstances. The administrator shall state in writing the
30reasons that a blind lineup is not practicable.

1(2) The law enforcement agency employs a single lineup
2administrator who conducts all of its lineups, counsel for
3the suspect is present at the lineup and the identification
4procedure complies with subsections (d), (e), (f), (g), (i)
5and (j).

6(3) The law enforcement agency audiovisually records the
7identification process and that identification procedure
8complies with subsections (d), (e), (f), (g), (i) and (j).

9(d) Prelineup instructions.--Prior to a live or photo
10lineup, the administrator shall apprise the eyewitness of all of
11the following:

12(1) That the perpetrator may or may not be among the
13individuals presented in the identification procedure.

14(2) That the eyewitness should not feel compelled to
15make an identification.

16(3) That the investigation will continue whether or not
17an identification is made.

18(4) That if an identification is made, the administrator
19will ask the eyewitness to state, in his own words, how
20certain he is of the identification.

21(e) Contact among eyewitnesses.--If more than one eyewitness
22views a live or photo lineup in a session, the administrator
23shall not permit the eyewitnesses to communicate with each other
24until all identification procedures in the session have been
25completed. Reasonable efforts shall be made so that an
26eyewitness does not see or hear the identification or
27nonidentification made by any other witness.

28(f) Lineup composition.--The administrator shall conduct the
29lineup such that:

30(1) Only one suspect is included in a live or photo

1lineup.

2(2) In a live lineup, the following apply:

3(i) All lineup participants are out of view of the
4eyewitness prior to the identification procedure.

5(ii) At least five fillers are used.

6(iii) Any identifying actions, such as speech,
7gestures or movements, are performed by all lineup
8participants.

9(3) In a photo lineup, the following apply:

10(i) The photograph of the suspect is placed in a
11different position in the lineup for each eyewitness.

12(ii) At least five fillers are used.

13(g) Comment after lineup.--An administrator or law
14enforcement officer may not comment or otherwise indicate
15whether an identification has identified a suspect.

16(h) Show-ups.--The following apply to show-ups:

17(1) When practicable and when safe for the witness and
18law enforcement officers, the person conducting the show-up
19shall obtain the eyewitness's description of the perpetrator
20and shall record or otherwise document the description before
21commencing the show-up. If compliance with this paragraph is
22not practicable or safe, the person conducting the show-up
23shall state in writing the reasons for the failure to comply.

24(2) When practicable and when safe for the witness and
25the law enforcement officers, the person conducting the show-
26up shall apprise the eyewitness of all of the following
27before commencing the show-up:

28(i) That the perpetrator may or may not be the
29individual presented to the eyewitness.

30(ii) That the eyewitness should not feel compelled

1to make an identification.

2(iii) That the investigation will continue whether
3or not an identification is made.

4(iv) That if an identification is made, the
5administrator will ask the eyewitness to state, in his
6own words, how certain he is of the identification.

7(3) When performing a show-up, law enforcement personnel
8shall take reasonable measures to preclude the eyewitness
9from drawing inferences prejudicial to the suspect, including
10the following:

11(i) Refraining from suggesting through statements or
12nonverbal conduct that the suspect is or may be the
13perpetrator of the crime.

14(ii) When practicable and when safe for the witness
15and the law enforcement officers, removing handcuffs from
16the suspect and having the show-up take place at some
17distance from a squad car.

18(4) If there are multiple eyewitnesses to a criminal
19offense under investigation, police shall make reasonable
20efforts to prevent an eyewitness from seeing or hearing the
21identification or nonidentification made by any other
22witness.

23(5) If an eyewitness is requested to make an
24identification of more than one suspect at a show-up, the
25suspects shall be separated and the person conducting the
26show-up shall perform a separate show-up for each suspect
27when practicable and when safe for the witness and the law
28enforcement officers.

29(i) Confidence statement.--If an eyewitness identifies an
30individual as the perpetrator at an identification procedure,

1the administrator shall immediately request a statement from the
2eyewitness, in the eyewitness's own words, as to the
3eyewitness's confidence level that the individual he identified
4is the perpetrator. The eyewitness must not be permitted to see
5or hear any information concerning the identified individual
6until after the administrator obtains the eyewitness's
7confidence statement.

8(j) Record.--The administrator shall make a record of the
9identification procedure. The record must include all
10identification and nonidentification results obtained during the
11identification procedure as well as any confidence statement.

12§ 8315. Trial practice.

13(a) Suppression.--The trial court may consider evidence of
14failure to comply with this subchapter in adjudicating a motion
15to suppress an eyewitness identification.

16(b) Misidentification.--Evidence of failure to comply with
17this subchapter may be admitted at trial in support of a claim
18of eyewitness misidentification.

19(c) Jury instruction.--

20(1) If sufficient evidence of failure to comply with
21this subchapter is presented at trial, the trial court shall
22instruct the jury that it may consider the evidence of
23noncompliance as a reason to view the identification evidence
24with caution.

25(2) At the request of either party, the trial court may
26instruct the jury as to the requirements of this subchapter
27and how compliance or failure to comply with those
28requirements may affect the reliability of the
29identification.

30§ 8316. Dissemination of identification procedures.

1(a) Training.--The Pennsylvania State Police and the
2Municipal Police Officers' Education and Training Commission
3shall develop and conduct a training program for law enforcement
4officers and recruits regarding the method of conducting
5identification procedures under this subchapter and the
6scientific findings supporting the methods prescribed by this
7subchapter.

8(b) Adoption of procedures.--Each law enforcement agency
9shall adopt a written protocol for eyewitness identification
10procedures consistent with this subchapter.

11Section 7. This act shall take effect as follows:

12(1) This section shall take effect immediately.

13(2) The addition of 42 Pa.C.S. § 5919.1 shall take
14effect in 60 days.

15(3) The following provisions shall take effect in 180
16days:

17(i) The amendment of 18 Pa.C.S. § 9122(a).

18(ii) The amendment of 42 Pa.C.S. §§ 8521(a) and
198522(b).

20(iii) The addition of 42 Pa.C.S. Ch. 85 Subch. D.

21(4) The addition 44 Pa.C.S. Ch. 83 Subch. A shall take
22effect in one year.

23(5) The remainder of this act shall take effect in 120
24days.