ENGROSSED


COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 82

(By Senator Hunter)

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[Originating in the Committee on the Judiciary;

reported February 22, 2007.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §62-1E-1, §62-1E-2, §62-1E-3 and §62-1E-4, all relating to recommending procedures proposed by the United States Department of Justice to improve the reliability of eyewitness' identification in criminal matters; defining terms; authorizing training for law- enforcement officers; and providing mandatory implementation date.

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, §62-1E-3 and §62-1E-4, all to read as follows:
ARTICLE 1E. EYEWITNESS IDENTIFICATION REFORM 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. Recommended eyewitness identification procedures.
(a)The Legislature recommends that for a period of two years from the effective date of this article, lineups conducted by state, county and local law-enforcement officers be performed as follows:
(1)Where practicable, the lineup administrator shall be a person who does not know which person in the lineup is the suspect.
(2)Before a lineup, the eyewitness should be given the following four instructions: (i) That the lineup administrator does not know which person is the suspect (this instruction is to be given even when the lineup administrator knows which person is the suspect); (ii) that the perpetrator might or might not be present in the lineup; (iii) that the eyewitness is not required to make an identification; and (iv) that it is as important to exclude innocent persons as it is to identify the perpetrator.
(3)Individuals in the lineup should be presented sequentially, not simultaneously. However, if for any reason the lineup administrator knows which person in the lineup is the suspect, the lineup must be presented simultaneously, not sequentially.
(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 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.
(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 and also whether the eyewitness was instructed that the lineup administrator did not know the identity of the suspect.
(8)Whether the lineup was simultaneous or sequential.
(9)The signature of the eyewitness.
(10)A video of the lineup and the eyewitness' response may be included.
§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.
§62-1E-4. Mandatory implementation date.
Notwithstanding the provisions of section one of this article, the recommendations contained therein shall become required of such law enforcement agencies on the first day of July, two thousand eight.