SB82 H JUD AM 3-7 #1
The Committee on the Judiciary moves to amend the bill on page
two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
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 WV Prosecuting
Attorney 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 WV 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 WV 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 forces
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 December 15, 2008, 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 December 15, 2009, 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.