ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 82
(Senator Hunter, original sponsor)
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[Passed March 10, 2007; in effect from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §62-1E-1, §62-1E-2
and §62-1E-3, all relating to creating the Eyewitness
Identification Act; and establishing definitions, eyewitness
identification procedures, a study task force and related
training.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §62-1E-1, §62-1E-2 and
§62-1E-3, all to read as follows:
ARTICLE 1E. EYEWITNESS IDENTIFICATION ACT.
§62-1E-1. Definitions.
For the purposes of this article:
(1) "Eyewitness" means a person whose identification of
another person may be relevant in a criminal proceeding.
(2) "Lineup" means a live or photographic array of persons of similar appearance.
(3) "Lineup administrator" means the person who conducts a
lineup.
(4) "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 the perpetrator of a crime.
(5) "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 the perpetrator
of a crime.
§62-1E-2. Eyewitness identification procedures.
(a) Before a lineup, 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.
(b) Law-enforcement officers should make a written record of
a lineup, including 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.
(c) 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 in consultation with eyewitness
identification practitioners and experts, 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 confidence in his
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 the fifteenth day of December, two thousand
eight, 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 the fifteenth day of
December, two thousand nine, unless earlier terminated by
legislative action.
§62-1E-3. Training of law-enforcement officers.
The Superintendent of State Police may create educational
materials and conduct training programs to instruct law-enforcement
officers and recruits how to conduct lineups in compliance with
this section.