1Providing for improvement of accuracy of eyewitness
2identifications.

3The General Assembly of the Commonwealth of Pennsylvania
4hereby enacts as follows:

5Section 1.  Definitions.

6The following words and phrases when used in this act shall
7have the meanings given to them in this section unless the
8context clearly indicates otherwise:

9"Eyewitness."  A person who observes another person at or
10near the scene of an offense.

11"Filler."  Either a person or a photograph of a person who is
12not suspected of an offense and is included in an identification
13procedure.

14"Identification procedure."  Either a photo lineup or a live
15lineup.

16"Investigator."  The person conducting the live or photo
17lineup.

18"Live lineup."  A procedure in which a group of persons,

1including the person suspected as the perpetrator of an offense
2and other persons not suspected of the offense, is displayed to
3an eyewitness for the purpose of determining whether the
4eyewitness is able to identify the suspect as the perpetrator.

5"Photo lineup."  A procedure in which an array of
6photographs, including a photograph of the person suspected as
7the perpetrator of an offense and additional photographs of
8other persons not suspected of the offense, is displayed to an
9eyewitness for the purpose of determining whether the eyewitness
10is able to identify the suspect as the perpetrator.

11Section 2.  Eyewitness identification procedures.

12Each municipal police department and the Pennsylvania State
13Police shall adopt procedures for conducting photo lineups and
14live lineups that comply with the following requirements:

15(1)  When practicable, the investigator shall be a person
16who is not aware of which person in the photo lineup or live
17lineup is suspected as the perpetrator of the offense.

18(2)  When it is not practicable for the investigator to
19be a person who is not aware of which person in the photo or
20live lineup is suspected as the perpetrator of the offense:

21(i)  The lineup will be presented simultaneously, not
22sequentially.

23(ii)  The investigator will state in writing the
24reason that presentation of the lineup was not made by a
25person who was not aware of which person in the photo
26lineup or live lineup was suspected as the perpetrator of
27the offense.

28(3)  The eyewitness shall be instructed prior to the
29identification procedure:

30(i)  That the perpetrator may not be among the

1persons in the photo lineup or the live lineup.

2(ii)  That the eyewitness should not feel compelled
3to make an identification.

4(iii)  That when administering a live lineup or photo
5lineup in sequence rather than simultaneously:

6(A)  Each photograph or person will be viewed one
7at a time.

8(B)  The photographs or persons will be displayed
9in random order.

10(C)  The eyewitness should take as much time as
11needed in making a decision about each photograph or
12person before moving to the next one.

13(D)  All photographs or persons will be shown to
14the eyewitness even if an identification is made
15before all have been viewed.

16(4)  The photo lineup or live lineup shall be composed so
17that the fillers generally fit the description of the person
18suspected as the perpetrator and, in the case of a photo
19lineup, so that the photograph of the person suspected as the
20perpetrator resembles his or her appearance at the time of
21the offense and does not unduly stand out.

22(5)  If the eyewitness has previously viewed a photo
23lineup or live lineup in connection with the identification
24of another person suspected of involvement in the offense,
25the fillers in the lineup in which the person suspected as
26the perpetrator participates shall be different from the
27fillers used in any prior lineup.

28(6)  At least five fillers shall be included in the photo
29lineup and at least four fillers shall be included in the
30live lineup, in addition to the person suspected as the

1perpetrator.

2(7)  In a photo lineup, no writings or information
3concerning any previous arrest of the person suspected as the
4perpetrator shall be visible to the eyewitness.

5(8)  In a live lineup, any identification actions, such
6as speaking or making gestures or other movements, shall be
7performed by all lineup participants.

8(9)  In a live lineup, all lineup participants shall be
9out of the view of the eyewitness at the beginning of the
10identification procedure.

11(10)  The person suspected as the perpetrator shall be
12the only suspected perpetrator included in the identification
13procedure.

14(11)  Nothing may be said to the eyewitness regarding the
15position in the photo lineup or the live lineup of the person
16suspected as the perpetrator except as otherwise provided in
17paragraph (3).

18(12)  Nothing may be said to the eyewitness that might
19influence the eyewitness's selection of the person suspected
20as the perpetrator.

21(13)  The investigator shall seek, in the eyewitness's
22own words, his or her confidence level that the person
23identified in the lineup is the suspect.

24(14)  If the eyewitness identifies a person as the
25perpetrator, the eyewitness may not be provided any
26information concerning the person prior to obtaining the
27eyewitness's statement that he or she is certain of the
28selection.

29(15)  A written record of the identification procedure
30shall be made that includes the following information:

1(i)  All identification and nonidentification results
2obtained during the identification procedure, signed by
3the eyewitness, including the eyewitness's own words
4regarding how certain he or she is of the selection.

5(ii)  The names of all persons present at the
6identification procedure.

7(iii)  The date and time of the identification
8procedure.

9(iv)  In a live or photo lineup where the subjects
10were presented sequentially as opposed to simultaneously,
11the order in which the photographs or persons were
12displayed to the eyewitness.

13(v)  In a photo lineup, the photographs themselves.

14(vi)  In a photo lineup, identification information
15and the sources of all photographs used.

16(vii)  In a live lineup, a photo or other visual
17recording of the lineup that includes all persons who
18participated in the lineup.

19Section 3.  Remedies for noncompliance.

20(a)  Suppression.--Evidence of a failure to comply with any
21of the provisions of this act shall be considered by the trial
22courts in adjudicating motions to suppress eyewitness
23identification.

24(b)  Evidence.--Evidence of a failure to comply with any of
25the provisions of this act shall be admissible in support of
26claims of eyewitness misidentification as long as the evidence
27is otherwise admissible.

28(c)  Jury instruction.--When evidence of a failure to comply
29with any of the provisions of this act has been presented at
30trial, the jury shall be instructed that it may consider

1credible evidence of noncompliance in determining the
2reliability of eyewitness identifications.

3Section 4.  Training of law enforcement officers.

4The Attorney General shall create, administer and conduct
5training programs for law enforcement officers and recruits on
6the methods and technical aspects of the eyewitness
7identification practices and procedures for the purposes of this
8act.

9Section 5.  Effective date.

10This act shall take effect in 60 days.