Senate Bill No. 82
(By Senator Hunter)
[Originating in the Committee on the Judiciary;
reported February 22, 2007.]
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, §62-1E-4, §62-1E-5 and §62-1E-6, all relating to
adopting procedures recommended by the United States
Department of Justice to improve the reliability of
eyewitness' identification in criminal matters; adopting a
short title; listing legislative findings; defining terms;
providing remedies for noncompliance; and improving training
for law-enforcement officers.
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, §62-1E-4, §62-1E-5 and §62-1E-6, all to read as follows:
ARTICLE 1E. EYEWITNESS IDENTIFICATION REFORM ACT.
§62-1E-1. Short title.
This act is known as the Eyewitness Identification Reform Act.
§62-1E-2. Legislative findings and purpose.
This law is enacted by the Legislature to adopt procedures to
improve the reliability of eyewitness' identification in criminal
The Legislature finds:
(1) Innocent people are sometimes accused or convicted of
serious crimes because of mistaken eyewitness identification.
(2) Improperly conducted lineup identifications may result in
mistaken eyewitness identification distracting law-enforcement
agencies from apprehending the correct perpetrators.
(3) Many law-enforcement experts now recognize the problem of
mistaken identifications and have recommended solutions.
(4) The National Institute of Justice, an agency of the United
States Department of Justice, recommends having "Blind" lineup
administrators, giving certain instructions to witnesses and having
sequential presentations of the lineups.
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
(3) "Lineup administrator" means the person who conducts a
(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-4. Eyewitness identification procedures.
(a)Lineups conducted by state, county and local
law-enforcement officers shall meet the following requirements:
(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 shall 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 shall 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 shall 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
(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
§62-1E-5. Remedies for noncompliance.
(a) Failure to comply with any of the requirements of this
article shall be considered by the court in adjudicating motions to
suppress eyewitness identification.
(b) Failure to comply with any of the requirements of this
article shall be admissible in support of claims of eyewitness
misidentification, as long as such evidence is otherwise
(c) When evidence of noncompliance with the requirements of this article has been presented at trial, the jury shall be
instructed that it may consider credible evidence of noncompliance
in determining the reliability of an eyewitness' identification if
the defense request such an instruction.
§62-1E-6. Training of law-enforcement officers.
The Superintendent of State Police shall create educational
materials and conduct training programs to instruct law-enforcement
officers and recruits how to conduct lineups in compliance with
(NOTE: The purpose of this bill is adopt procedures
recommenced by the National Institute of Justice, an agency of the
United States Department of Justice, to improve the reliability of
eyewitness identification in criminal matters.
This article is new; therefore, strike-throughs and
underscoring have been omitted.)