HB2960ham001 98TH GENERAL ASSEMBLY

Rep. Scott Drury

Filed: 4/11/2013

09800HB2960ham001 LRB098 09208 MRW 44366 a

AMENDMENT TO HOUSE BILL 2960

AMENDMENT NO. ______. Amend House Bill 2960 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Criminal Procedure of 1963 is amended by adding Sections 107A-0.1 and 107A-2 as follows:

(725 ILCS 5/107A-0.1 new)

Sec. 107A-0.1. Definitions.

For the purposes of this Article:

"Eyewitness" means a person whose identification by sight of another person may be relevant in a criminal proceeding.

"Filler" means a person or a photograph of a person who is not suspected of an offense and is included in a lineup.

"Independent administrator" means a lineup administrator who is not participating in the investigation of the criminal offense and is unaware of which person in the lineup is the suspected perpetrator.

"Lineup" includes a photo lineup or live lineup.

"Lineup administrator" means the person who conducts a lineup.

"Live lineup" means a procedure in which a group of persons are displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.

"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.

"Sequential lineup" means a live or photo lineup in which persons or photographs are presented to an eyewitness separately, in a previously determined order, and removed after they are viewed before the next person or photograph is presented, in order to determine if the eyewitness is able to identify the perpetrator of a crime.

"Simultaneous lineup" means a live or photo lineup in which a group of persons or array of photographs are simultaneously presented to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.

(725 ILCS 5/107A-2 new)

Sec. 107A-2. Lineup procedure.

(a) All lineups shall be conducted by an independent administrator, unless it is not practical. If it is not practical for an independent administrator to conduct a lineup, the reasons for not using an independent administrator shall be made in an official report prepared prior to conducting the lineup and verified under oath as provided in Section 2-605 of the Code of Civil Procedure attesting to the veracity of the report, and for photo lineups conducted without an independent administrator one of the following alternative methods shall be used:

(1) An automated computer program that can automatically administer the photo lineup directly to an eyewitness and prevent the administrator from seeing which photograph or photographs the witness is viewing until after the procedure is completed. The automated computer program may present the photographs to the eyewitness simultaneously or sequentially, consistent with the law enforcement agency guidelines required under subsection (b) of this Section.

(2) A procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the administrator cannot see or track which photograph or photographs being presented to the eyewitness until after the procedure is completed. The photographs may be presented to the eyewitness simultaneously or sequentially, consistent with the law enforcement agency guidelines required under subsection (b) of this Section.

(3) Any other procedure that prevents the administrator from seeing or tracking the photographs being presented to the eyewitness until after the procedure is completed.

(b) Each law enforcement agency shall adopt written guidelines setting forth when, if at all, simultaneous lineups shall be conducted and when, if at all, sequential lineups shall be conducted. This subsection does not establish a preference for whether a law enforcement agency should conduct simultaneous lineups or sequential lineups. Whether and when to conduct simultaneous lineups or sequential lineups is at the discretion of each law enforcement agency.

(c) If a lineup administrator conducts a sequential lineup, the following shall apply:

(1) Solely at the eyewitness' request, the person conducting the lineup may present a person or photograph to the eyewitness an additional time but only after the eyewitness has first viewed each person or photograph one time.

(2) If the eyewitness identifies a person as the perpetrator, the lineup administrator shall continue to sequentially present the remaining persons or photographs to the eyewitness until the eyewitness has viewed each person or photograph.

(d) Before a lineup is conducted:

(1) The eyewitness shall be instructed that:

(A) the perpetrator may or may not be presented in the lineup;

(B) if an independent lineup administrator is being used, the eyewitness shall be given the instruction that the lineup administrator does not know the suspected perpetrator's identity;

(C) the eyewitness should not feel compelled to make an identification;

(D) it is as important to exclude innocent persons as it is to identify the perpetrator; and

(E) the investigation will continue whether or not an identification is made.

(2) The eyewitness shall acknowledge in writing the receipt of the instructions required under this subsection. If the eyewitness refuses to sign the acknowledgement, the lineup administrator shall note the refusal of the eyewitness to sign the acknowledgement and shall also sign the acknowledgement.

(e) In conducting a lineup:

(1) The lineup administrator shall separate all eyewitnesses in order to discourage eyewitnesses from conferring with one another before and during the lineup procedure. Each eyewitness shall be given instructions regarding the identification procedures without other eyewitnesses present.

(2) The lineup shall be composed so that the fillers generally resemble the eyewitness's description of the perpetrator, while ensuring that the suspected perpetrator does not unduly stand out from the fillers. In addition:

(A) All fillers selected shall resemble, as much as practicable, the eyewitness's description of the perpetrator in significant features, including any unique or unusual features.

(B) At least 5 fillers shall be included in a photo lineup, in addition to the suspected perpetrator.

(C) At least 5 fillers shall be included in a live lineup, in addition to the suspected perpetrator.

(D) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the current suspected perpetrator participates shall be different from the fillers used in the prior lineups.

(3) Only one suspected perpetrator shall be included in a lineup.

(4) If there are multiple eyewitnesses, to the extent possible, the suspected perpetrator shall be placed in a different position in the lineup or photo array for each eyewitness.

(5) Nothing shall be communicated to the eyewitness regarding the suspected perpetrator's position in the lineup or regarding anything that may influence the eyewitness's identification.

(6) No writings or information concerning any previous arrest, indictment, or conviction of the suspected perpetrator shall be visible or made known to the eyewitness.

(7) If a photo lineup, the photograph of the suspected perpetrator shall be contemporary and, to the extent practicable, shall resemble the suspected perpetrator's appearance at the time of the offense.

(8) If a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants.

(9) If a live lineup, all lineup participants must be out of view of the eyewitness prior to the lineup.

(10) The lineup administrator shall obtain and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness's own words, as to the eyewitness's confidence level that the person identified in a lineup is the perpetrator.

(11) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning the person before the lineup administrator obtains the eyewitness's confidence level statement about the selection.

(12) Unless otherwise allowed under subsection (a) of this Section, there shall not be anyone present during a lineup who knows the suspected perpetrator's identity, except the eyewitness and suspected perpetrator's counsel as required by law.

(f) The lineup administrator shall make a written record of all lineups, which shall include all of the following information:

(1) All identification and non-identification results obtained during the lineup, signed by the eyewitness, including the eyewitness's confidence level statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation.

(2) The names of all persons who viewed the lineup.

(3) The names of all law enforcement officers and counsel present during the lineup.

(4) The date, time, and location of the lineup.

(5) The words used by the eyewitness in an identification, including words that describe the eyewitness's certainty of identification.

(6) Whether it was a photo lineup or live lineup and how many persons or photographs were presented in the lineup.

(7) The sources of all persons or photographs used as fillers in the lineup.

(8) In a photo lineup, the actual photographs shown to the eyewitness.

(9) In a live lineup, a photograph or other visual recording of the lineup that includes all persons who participated in the lineup.

(g) Unless it is not practical or the eyewitness refuses, a video record of lineup procedures shall be made.

(1) If a video record is not practical or the eyewitness refuses to allow a video record to be made:

(A) the reasons or the refusal shall be documented in an official report prepared prior to conducting the eyewitness identification procedure and verified under oath as provided in Section 2-605 of the Code of Civil Procedure attesting to the veracity of the report;

(B) an audio record shall be made, if practical; and

(C) if a live lineup, the lineup shall be photographed.

(2) If an audio record is not practical, the reasons shall be documented in an official report prepared prior to conducting the eyewitness identification procedure and verified under oath as provided in Section 2-605 of the Code of Civil Procedure attesting to the veracity of the report.

(h) The photographs, recordings, and the written record of the lineup required by this Section shall be disclosed to the accused and his or her defense counsel during discovery proceedings as provided in Illinois Supreme Court Rules. All photographs of suspected perpetrators shown to an eyewitness during a lineup shall be disclosed to the accused and his or her defense counsel during discovery proceedings as provided in Illinois Supreme Court Rules.

(i) All of the following shall be available as consequences of compliance or noncompliance with the requirements of this Section:

(1) Failure to comply with any of the requirements of this Section shall be considered by the court in adjudicating a motion to suppress an eyewitness identification or any other motion to bar an eyewitness identification.

(2) When evidence of compliance or noncompliance with the requirements of this Section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of an eyewitness identification.

(725 ILCS 5/107A-5 rep.)

(725 ILCS 5/107A-10 rep.)

Section 10. The Code of Criminal Procedure of 1963 is amended by repealing Sections 107A-5 and 107A-10.".