SECTION 1. The legislature finds that the goal of a police investigation is to apprehend the person or persons responsible for the commission of a crime. Mistaken eyewitness identification has been shown to have contributed to the wrongful conviction in approximately seventy-five per cent of the nation's two hundred eighty-nine exonerations. Over the past thirty years, a large body of peer-reviewed, scientific research and practice has emerged showing that simple systemic changes in administering eyewitness identification procedures can greatly improve the accuracy of eyewitness identifications. Policies and procedures to improve the accuracy of eyewitness identifications, such as those recommended by the United States National Institute of Justice, the American Bar Association, the New Jersey Office of the Attorney General, the Wisconsin Office of the Attorney General, the California Commission on the Fair Administration of Justice, and the North Carolina Actual Innocence Commission, are readily available for review.

The legislature further finds that more accurate eyewitness identifications increase the ability of police and prosecutors to convict the guilty and protect the innocent. The integrity of the State's criminal justice process is enhanced by adherence to best practices in evidence gathering. The people of the State of Hawaii will benefit from the improvement of the accuracy of eyewitness identifications.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

EYEWITNESS IDENTIFICATION PROCEDURES

§ -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Administrator" means the person conducting the photo or live lineup or showup for law enforcement.

"Blind" means the administrator does not know the identity of the suspect in the lineup.

"Blinded" means the administrator may know who the suspect is, but by virtue of the use of procedures or technology, does not know which lineup member is being viewed by the eyewitness.

"Contamination" occurs when an eyewitness' memory of a person or event becomes altered, replaced, or otherwise impaired as a result of exposure to extrinsic information related to that person or event.

"Eyewitness" means a person who observes another person at or near the scene of an offense.

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

"Identification" means the eyewitness has identified a specific person as the perpetrator.

"Identification procedure" means a live lineup, a photo lineup, or a showup.

"Law enforcement" means any law enforcement entity conducting an investigation.

"Live lineup" means an identification procedure in which a group of persons, including the suspect and other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.

"Photo lineup" means an identification procedure in which an array of photographs, including a photograph of the suspect and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness either in hard copy form or via computer or other electronic means for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.

"Showup" means an identification procedure in which an eyewitness is presented in-person with a single suspect for the purpose of determining whether the eyewitness identifies this individual as the perpetrator.

"Suspect" means the person believed by law enforcement to be the possible perpetrator of the crime.

§ -2 Eyewitness identification procedures for live and photo lineups. (a) Any law enforcement entity conducting eyewitness identification procedures shall adopt specific procedures for conducting photo and live lineups that comply with the following minimum requirements:

(1) Prior to a photo or live lineup, law enforcement shall record in writing as complete a description as possible of the perpetrator provided by the eyewitness in the eyewitness' own words. This statement shall also include information regarding the conditions under which the eyewitness observed the perpetrator including location, time, distance, obstructions, lighting, weather conditions, and other impairments, including but not limited to alcohol, drugs, stress, and visual or auditory disabilities;

(2) The eyewitness shall also be asked if the eyewitness' vision needs correction by glasses or contact lenses and whether the eyewitness was wearing them at the time of the offense. The administrator shall note whether the eyewitness was wearing glasses or contact lenses at the time of the identification procedure;

(3) All live and photo lineups shall be conducted blind unless to do so would place an undue burden on law enforcement or the investigation; and

(4) The eyewitness shall be instructed, without other eyewitnesses present, prior to any live or photo lineup, that:

(A) The perpetrator may or may not be among the persons in the identification procedure;

(B) The administrator does not know the identity of the perpetrator, if applicable;

(D) The investigation will continue regardless of whether an identification is made;

(E) The procedure requires the administrator to ask the eyewitness to state, in the eyewitness' own words, how certain the eyewitness is of any identification; and

(F) The eyewitness is not to discuss the identification procedure or its results with other eyewitnesses involved in the case and should not speak with the media.

(b) The administrator shall comply with the following:

(1) In a photo lineup, any photograph of the suspect shall be contemporary and shall resemble the suspect's appearance at the time of the offense;

(2) In a photo lineup, there shall be no characteristics of the photographs themselves or the background context in which they are placed that makes any of the photographs unduly stand out;

(3) A photo or live lineup shall be composed so that the fillers generally resemble the eyewitness' description of the perpetrator, while ensuring that the suspect does not unduly stand out from the fillers;

(4) In a photo or live lineup, the administrator shall comply with the following:

(A) All fillers selected shall resemble the eyewitness' description of the perpetrator in significant features including but not limited to face, weight, build, and skin tone, including any unique or unusual features such as a scar, tattoo, or other unique identifying mark;

(B) Create a consistent appearance between the suspect and fillers with respect to any unique or unusual feature, e.g., scars or tattoos, used to describe the perpetrator by artificially adding or concealing that feature;

(D) At least four fillers shall be included in a live lineup in addition to the suspect; and

(E) 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 instant suspect participates shall be different from the fillers used in any prior lineups;

(5) In a live lineup, ensure that any identification actions, e.g., speaking or moving, are performed by all lineup participants;

(6) In a live lineup, all lineup participants shall be out of view of the eyewitness prior to the identification procedure;

(7) In a photo or live lineup, nothing shall be said to the eyewitness regarding the suspect's position in the lineup; and

(8) In a photo or live lineup, nothing shall be said to the eyewitness that might influence the eyewitness' identification of any particular lineup member.

(1) Each eyewitness shall view photo or live lineups separately;

(2) The suspect shall be placed in a different position in the live lineup or photo lineup for each eyewitness; and

(3) The eyewitnesses shall not be permitted to communicate with each other until all identification procedures have been completed.

(d) In any identification procedure, no writings or information concerning the current investigation or any previous arrest, indictment, or conviction of the suspect shall be visible or made known to an eyewitness.

(e) When there are multiple suspects, each identification procedure shall include only one suspect.

(f) In any identification procedure where an eyewitness makes an identification, the administrator shall seek and document a clear statement from the eyewitness at the time of the identification in the eyewitness' own words, including a statement describing the eyewitness' confidence level that the person identified is the perpetrator.

(g) In any identification procedure where an eyewitness makes an identification, the eyewitness shall not be provided any information concerning the person identified before the administrator obtains the eyewitness' statement about the selection.

(h) Law enforcement shall make record of the identification procedure that includes all identification and non-identification results obtained during all identification procedures during an investigation, which record shall be signed by the eyewitness.

(i) When it is impracticable for a blind administrator to conduct a lineup, the investigator shall state in writing the reason therefor.

§ -3 Eyewitness identification procedures for showups. (a) The administrator shall comply with the following in conducting a showup:

(1) Where possible, the administrator shall perform a live or photo lineup instead of a showup;

(2) A showup shall only be performed using a live suspect and only in exigent circumstances that require the immediate display of a suspect to an eyewitness;

(3) An administrator shall not conduct a showup with a photograph. If investigators wish to determine if an eyewitness can make an identification using a photograph, a photo lineup must be used;

(4) Prior to any showup, law enforcement shall record in writing as complete a description as possible of the perpetrator provided by the eyewitness in the eyewitness' own words. This statement shall also include information regarding the conditions under which the eyewitness observed the perpetrator including location, time, distance, obstructions, lighting, weather conditions, and other impairments including but not limited to alcohol, drugs, stress, and visual or auditory disabilities;

(5) The eyewitness shall also be asked if the eyewitness' vision needs correction by glasses or contact lenses and whether the eyewitness was wearing them at the time of the offense. The administrator shall note whether the eyewitness was wearing glasses or contact lenses at the time of the identification procedure;

(6) The eyewitness shall be transported to a neutral, non-law enforcement location where the suspect is being detained for the purposes of a showup procedure;

(7) The eyewitness shall be instructed, without other eyewitnesses present, prior to any showup that:

(A) The perpetrator may or may not be the person that is presented to the eyewitness;

(B) The administrator does not know the identity of the perpetrator;

(D) The investigation will continue regardless of whether an identification is made;

(E) The procedure requires the administrator to ask the eyewitness to state, in the eyewitness' own words, how certain the eyewitness is of any identification; and

(F) The eyewitness is not to discuss the identification procedure or its results with other eyewitnesses involved in the case and should not speak with the media.

(b) At any showup, in order to reduce potentially damaging or prejudicial inferences that may be drawn by the eyewitness, the administrator shall comply with the following:

(1) Refraining from suggesting, through statements or non-verbal conduct, that the suspect is or may be the perpetrator of the crime;

(2) Refraining from removing the suspect from a squad car in front of the eyewitness; and

(3) When practicable, the administrator shall present the suspect to the eyewitness without handcuffs.

(1) Only one eyewitness at a time shall be present at the location of the showup to participate in the showup procedure; and

(2) If a positive identification is made, and an arrest is justified, additional eyewitnesses shall be shown live or photo lineups.

(d) If there are multiple suspects, the suspects shall be separated and subjected to separate showup procedures.

(e) If the eyewitness makes an identification, the administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness' own words, as to the eyewitness' confidence level that the person identified in a given identification procedure is the perpetrator.

(f) The administrator shall photograph a suspect or cause the suspect to be photographed at the time and place of the showup to preserve a record of the appearance of the suspect at the time of the showup procedure.

(g) When it is impracticable for a blind administrator to conduct a showup, the investigator shall state in writing the reason therefor.

§ -4 Video record of identification procedures; impracticability; alternative record. (a) Unless impracticable, a video record of the identification procedure shall be made that includes the following information:

(1) All identification and non-identification results obtained during the identification procedures, signed by any eyewitness, including any eyewitness' confidence statements;

(2) The names of all persons present at the identification procedure, including the name of the lineup administrator and whether the administrator was blind, blinded, or non-blind;

(3) If an administrator other than a blind administrator was used, the reason therefor;

(4) The date and time of the identification procedure;

(5) In a photo or live lineup, any eyewitness identification of filler; and

(6) In a photo or live lineup, the names of the lineup members and other relevant identifying information, and the sources of all photographs or persons used in the lineup.

(b) If a video record of the lineup is impracticable, the administrator of the lineup shall document the reason therefor and an audio record of the identification procedure shall be made. The audio record shall be supplemented by the following:

(1) All of the photographs used in a photo lineup; and

(2) Photographs of all of the individuals used in a live lineup or showup.

(c) If both a video and audio record of the lineup are impracticable, the administrator of the lineup shall document in writing the reason therefor and a written record of the lineup shall be made. The written record shall be supplemented by all of the following:

(1) All of the photographs used in a photo lineup; and

(2) Photographs of all of the individuals used in a live lineup.

§ -5 Remedies for noncompliance or contamination. (a) When the prosecution intends to offer eyewitness identification evidence at trial, the defendant is entitled to a pretrial evidentiary hearing as to the reliability of the evidence offered.

(b) At the hearing, the court shall examine whether law enforcement or any administrator failed to substantially comply with any requirement contained in this chapter, resulting in the contamination of the eyewitness. In making its determination, the court shall consider the following:

(1) Whether any suggestive identification procedures were employed;

(2) Whether the eyewitness identification evidence may have been otherwise contaminated by state or non-state actors; and

(3) Any other factors bearing upon the reliability of the identification evidence, including but not limited to characteristics of the witness, perpetrator, or event.

(c) If the trial court finds evidence of a failure of law enforcement, an administrator, or prosecuting agencies to comply with any of the provisions of this chapter, of the use of any other suggestive identification procedures, or of any other contamination of identification evidence by state or non-state actors, it shall:

(1) Consider this evidence in determining the admissibility of the eyewitness identification; and

(2) Suppress the evidence of eyewitness identification when there is a substantial probability of eyewitness misidentification.

§ -6 Training of law enforcement officers. The county police departments shall create, administer, and conduct training programs for law enforcement officers and recruits regarding the methods, technical aspects, and scientific findings regarding the basis of the eyewitness identification practices and procedures referenced in this chapter."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. This Act shall take effect on January 1, 2016.

HOUSE OF REPRESENTATIVES	H.B. NO.	147
TWENTY-EIGHTH LEGISLATURE, 2015		H.D. 1
STATE OF HAWAII