PRINTER'S NO. 1333
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1129
Session of
2017
INTRODUCED BY MATZIE, KINSEY, SCHLOSSBERG AND V. BROWN,
APRIL 10, 2017
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 10, 2017
AN ACT
Providing for procedures in police lineups and for powers and
duties of the Attorney General.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Police Lineup
Procedure Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Eyewitness." A person who observes another person at or
near the scene of an offense.
"Filler." Either a person or a photograph of a person who is
not suspected of an offense and is included in an identification
procedure. The prosecutor, and defense counsel where applicable,
shall participate in the selection of fillers. Volunteers,
inmates and other persons shall be equally available to both the
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prosecution and the defense.
"Identification procedure." A lineup, whether a photo lineup
or a live lineup.
"Independent investigator." An investigator who is unaware
of which person in a lineup is suspected as the perpetrator of
the offense.
"Investigator." The person who conducts a live or photo
lineup.
"Law enforcement agency." A government entity whose
responsibilities include enforcement of criminal laws or the
investigation of suspected criminal activity.
"Lineup." A procedure in which a group of persons is
displayed to an eyewitness for the purpose of determining
whether the eyewitness is able to identify the suspect as the
perpetrator of the offense.
"Lineup members." Any person, whether a suspect or filler,
who is used for a lineup.
"Live lineup." A lineup using actual persons.
"Photo lineup." A lineup using technology, such as an array
of photographs.
"Sequential." A lineup in which each individual or photo is
presented separately to a witness and removed after it is
viewed, and in which lineup the prosecutor and defense counsel
set the order of the presentation before the lineup commences.
"Show-up." A suspect who voluntarily surrenders or one who
the police have reason to believe participated in an offense and
is detained in the immediate aftermath of an offense.
"Simultaneous." A lineup in which all individuals or photos
are presented to the witness at the same time.
Section 3. Lineup procedure.
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(a) Requirements for lineup procedures.--Law enforcement
agencies shall adopt procedures for conducting lineups that
comply with the following requirements:
(1) (i) Video cameras, using current technology, shall
be permanently installed in all rooms where lineups are
to be conducted.
(ii) These cameras shall be oriented to record both
the behavior of the lineup members and of the
investigator and witness.
(iii) The videotape shall be of a quality that
represents the lineup clearly and fairly.
(iv) The videotape may show the lineup members as a
group or individually, but it shall preserve the
presentation order of the lineup.
(2) Individuals or photos should be presented to
witnesses sequentially rather than simultaneously.
(3) Independent investigators shall be used when
practicable.
(4) When it is impracticable to use an independent
investigator:
(i) The lineup shall be presented sequentially
rather than simultaneously.
(ii) The investigator will state, in writing, why an
independent investigator was not used.
(5) The lineup may not be conducted with more than one
witness present at a time.
(6) Witnesses shall be separated so they are not aware
of the other witnesses' responses.
(7) No one who knows the suspect's identity, other than
counsel, may be present during the lineup procedure.
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(8) Nothing shall be said to the eyewitness regarding
the position in the lineup of the person suspected as the
perpetrator except as otherwise provided in section 4.
(9) Nothing shall be said or done that might influence
the eyewitness's selection of the suspect. Investigators and
all other persons shall avoid making any comments during the
selection procedure.
(10) The investigator shall ensure that the witness does
not write or mark any materials used in identification
procedures.
(11) No materials indicating previous identifications
may be visible to the witness.
(12) Witnesses may not know how many individuals or
photos will be shown.
(13) (i) As each lineup member is presented, the
investigator shall ask the witness: "Is this the person
you saw (insert description of act here)? Yes or no?"
(ii) The witness's response to the question shall be
documented in both the video and the written record with
a reference to the number of the individual or photo
being presented and the exact response given.
(iii) If the witness answers "no" to the question,
the next individual shall be presented.
(iv) If the witness answers "yes," the investigator
shall ask, "Can you describe how sure you are?" No
witness may be compelled to give an answer to this
question. The witness's exact statement shall be
documented in both the video and the written record.
(v) The response shall be recorded instantly.
(14) If the eyewitness identifies a person as the
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perpetrator, the eyewitness may not be provided any
information concerning the person prior to obtaining the
eyewitness's statement that the eyewitness is certain of the
selection.
(15) All fillers or photos will be shown, even if an
identification is made in the course of the procedure.
(16) If the witness is unable to make an identification
after all individuals or photos are shown, the investigator
shall ask, "Would you like to view the lineup again?" The
fact that the witness was unable to make an identification
the first time through, and that the investigator asked the
witness if the witness would like to view the lineup again
shall be documented in both the video and the written record.
The outcome of the second display shall also be documented in
the video and written record.
(17) No witness may be told prior to the complete lineup
presentation that the witness will be allowed to view the
lineup a second time if the witness wishes.
(18) If a witness asks to see just one specific
individual or photo a second time, the request shall be
documented in both the video and written record.
(19) If a witness asks to see more than one specific
individual or photo a second time, the entire array must be
shown, and the fact that there was a second presentation
shall be documented in the video and written record.
(b) Duty of courts.--Courts shall:
(1) Permit, in appropriate cases, the introduction of
expert testimony on the issue of human memory as it relates
to the identification process and on the issue of best
practices for eyewitness identification procedures.
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(2) Provide a standardized jury instruction to acquaint
juries with factors that may contribute to unreliable
eyewitness identifications. This instruction shall enumerate
factors for the jury to consider and include a final sentence
which states as follows: "Eyewitness testimony should be
carefully examined in light of other evidence in the case."
(3) Provide a standardized jury instruction that
eyewitness identification should be evaluated in light of
current scientific research regarding cross-racial
identifications and the relevance of the degree of certainty
expressed by witnesses in court.
Section 4. Witness instructions.
(a) General rule.--Witnesses shall be instructed as follows
prior to a lineup:
(1) For a sequential presentation:
"In a moment, I am going to show you a series of photos
(or individuals). The person who committed the crime may or
may not be included. I do not know whether the person being
investigated is included."
"It is just as important to clear an innocent person of
wrongdoing as it is to identify the perpetrator."
"Even if you identify someone during this procedure, I
will continue to show you all photos (or individuals) in the
series."
"Keep in mind that things like hair styles, beards and
mustaches can be easily changed (In photo line-ups witnesses
shall also be instructed that complexion colors may look
slightly different in photographs)."
"You should not feel like you have to make an
identification. This procedure is important to the
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investigation whether or not you identify someone."
"The photos (or individuals) will be shown to you one at
a time and are not in any particular order. Take as much time
as you need to look at each one. After each photo (or
individual), I will ask you 'Is this the person you saw
(insert crime here)...yes or no?' Take your time answering
the question. If you answer 'yes,' I will then ask you, 'Can
you describe how sure you are?'"
"This is an ongoing investigation. In order to prevent
damaging the investigation, you should avoid discussing this
identification procedure or its results especially with other
witnesses or the media."
"Do you understand the way the lineup procedure will be
conducted and the other instructions I have given you?"
(2) For a simultaneous presentation:
"In a moment, I am going to show you a series of photos
(or individuals). The person who committed the crime may or
may not be included. I do not know whether the person being
investigated is included."
"Keep in mind that things like hair styles, beards and
mustaches can be easily changed (In photo lineups witnesses
shall also be instructed that complexion colors may look
slightly different in photographs)."
"You should not feel like you have to make an
identification. This procedure is important to the
investigation whether or not you identify someone."
"Take as much time as you need to look at the photo (or
individual) lineup and then tell me whether you see the
person who (insert crime here). If you identify anyone in the
lineup, I will then ask you, 'Can you describe how sure you
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are?'"
"This is an ongoing investigation. In order to prevent
damaging the investigation, you should avoid discussing this
identification procedure or its results, especially with
other witnesses or the media."
"Do you understand the way the lineup procedure will be
conducted and the other instructions I have given you?"
(b) Copy of instructions to be provided.--
(1) Witnesses shall be provided with a written copy of
the instructions required by subsection (a).
(2) A copy of the instructions shall be signed and dated
by the witness with the following statement: "I have read
these instructions or they have been read to me and I
understand the instructions. I am prepared to review the
photographs (or individuals) which will be presented to me
and I will follow the instructions provided on this form."
(3) The signed copy of the instructions shall be filed
in the investigative file.
Section 5. Written record.
(a) Duty to make.--A written record of the identification
procedure shall be made by an investigator that includes the
following information:
(1) The complete videotapes.
(2) The signed instructions given to the witness.
(3) All identification and no-identification results.
(4) The names of all persons present at the
identification procedure.
(5) The date, time and location of the identification
procedure.
(6) The order in which the photographs or individuals
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were presented.
(7) The number of times the lineup was viewed and the
results of the procedure.
(8) The witness's own words regarding their degree of
certainty of any identification.
(9) In a photo lineup, the photographs themselves.
(10) The written record shall be signed by the
eyewitness, along with the eyewitness's own words describing
the eyewitness's degree of certainty in the selection.
(11) The names of all fillers used in the lineup.
(12) The procedure employed.
(13) The number of photos or individuals displayed.
(14) The sources of all photos used.
(15) Any specific words, conduct or gestures required of
lineup participants.
(b) Standard form to be developed.--The Pennsylvania State
Police, in consultation with other law enforcement agencies in
this Commonwealth shall develop a standard form for recording
lineup results in this Commonwealth. Law enforcement agencies
may modify the standard form for their own needs.
Section 6. Detailed procedures.
(a) Fillers.--The following provisions shall apply to
fillers presented in a lineup:
(1) There shall be a minimum of seven fillers per
suspect in a photo identification procedure and a minimum of
five fillers per suspect in a live lineup.
(2) There may be more than one suspect in the lineup, if
more than one suspect fits the description of the
perpetrator. In such an instance, the number of fillers shall
be increased to a minimum of seven per suspect in photo
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lineups and five per suspect for live lineups.
(3) The suspect may not unreasonably stand out in any
lineup.
(4) Fillers shall resemble the witness's description of
the perpetrator in significant features such as face,
profile, height, weight, build, posture, gait, voice and
specific articles of clothing. Any identification actions,
such as speaking or moving, shall be performed by all members
of a lineup.
(5) If the perpetrator was described as having an
unusual identifying mark, all fillers shall have similar
markings or all lineup members shall have similar coverings
over the described area.
(6) If a composite is used, the fillers shall resemble
the witness's description based on their resemblance to the
composite.
(7) When there is an inadequate description of the
perpetrator or when there is a suspect whose appearance
differs from the description of the perpetrator, fillers
shall resemble the suspect in significant features.
(8) The first individual or photo presented shall be a
filler.
(9) All lineup participants shall be out of the view of
the eyewitness at all times prior to the lineup procedure.
The eyewitness may not see the suspect in the hall or station
in advance of the lineup.
(10) When presenting a new suspect, the investigator
shall avoid reusing the same fillers in lineups shown to the
same witness.
(11) Except as required by paragraph (8), all members of
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the lineup shall be presented in a random order.
(12) Suspects shall be presented in different positions
in each lineup when there are multiple witnesses in the same
case.
(13) If the eyewitness has previously viewed a lineup in
connection with the identification of another person
suspected of involvement in the offense, the fillers in the
lineup in which the person suspected as the perpetrator
participates shall be different from the fillers used in any
prior lineup.
(14) When a new suspect is presented, the investigator
shall avoid reusing the same fillers in lineups shown to the
same witness.
(b) Photographs.--The following provisions shall apply to
photographs presented in a lineup:
(1) Photographs shall be presented one at a time.
(2) Photographs shall be presented in random order.
(3) No writings or information concerning previous
arrests or previous identification results shall be visible
to the witness.
(4) After the photographs have been viewed, they shall
be marked denoting the order that they were presented to the
witnesses and shall be retained in the written record for
later use in court.
Section 7. Show-up procedures.
(a) General rule.--Show-ups shall:
(1) Only be presented to the witnesses when
circumstances require their prompt display. Such
circumstances shall include, but not be limited to:
(i) situations in which there is insufficient
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probable cause to detain the suspect long enough to
construct a proper lineup;
(ii) concerns about public safety; or
(iii) concerns regarding the health or survival of
either the suspect or the witnesses.
(2) Be encouraged to consent to voluntary detainment
until a proper lineup may be conducted.
(3) Sign and date a written consent that the show-up is
a willing participant in the lineup without promises,
threats, pressure or coercion.
(b) When lineup with show-up permitted.--
(1) A lineup with show-ups may be conducted only when
the suspect matching the description of the perpetrator is
located in close proximity in time and place to the crime.
(2) A description of the perpetrator shall be documented
prior to the lineup with show-ups.
(3) If practical, the witness shall be transported to
the location of the detained suspect to limit the legal
impact of the suspect's detention.
(4) Witnesses shall be given a cautionary instruction
that the individual may not be the perpetrator.
(5) If there are multiple witnesses and one witness
makes an identification during a lineup with show-ups, the
remaining witnesses shall be reserved for a subsequent
lineup.
Section 8. Remedies for noncompliance.
(a) Suppression.--A trial court shall consider evidence of
any failure to comply with the provision of this act when
adjudicating a motion to suppress eyewitness identification.
(b) Evidence.--Evidence of a failure to comply with a
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provision of this act shall be admissible in support of claims
of eyewitness misidentification, provided that the evidence is
otherwise admissible.
(c) Jury instruction.--When evidence of a failure to comply
with a provision of this act has been presented at trial, the
jury shall be instructed that it may consider credible evidence
of noncompliance in determining the reliability of eyewitness
identifications.
Section 9. Duties of Attorney General.
The Attorney General shall:
(1) Create, administer and conduct training programs for
law enforcement officers and recruits on the methods and
technical aspects of the eyewitness identification practices
and procedures required by this act.
(2) Provide training for judges, prosecutors and defense
lawyers to acquaint them with:
(i) The particular risks of cross-racial
identifications.
(ii) Unreliable identification procedures.
(iii) The use of expert testimony to explain such
risks to juries.
Section 10. Effective date.
This act shall take effect in 60 days.
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