SECTION 1. 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.

"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 suspect.

"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 a person as the suspect.

"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 a person as the suspect.

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

"Suggestive procedures" means any effort by law enforcement to contaminate an eyewitness identification of a suspect, including any actions taken or words spoken by law enforcement or any other person connected with the identification procedure to the eyewitness before, during, or after the identification procedure.

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

§ -2 Eyewitness identification procedures. (a) In any photo or live lineup or showup, law enforcement shall inform the eyewitness, without other eyewitnesses present, of the following information, including but not limited to:

(1) The suspect may or may not be among the person in the identification procedure;

(2) The administrator does not know the identity of the suspect, if applicable;

(3) The eyewitness should not feel compelled to make an identification;

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

(5) The identification procedure requires the administrator to ask the eyewitness to state, in the eyewitness' own words, how certain the eyewitness is of any identification, including but not limited to the conditions under which the eyewitness observed the suspect, including location, time, distance, obstructions, lighting, weather conditions, and other impairments, such as alcohol, drugs, stress, and visual or auditory impairments;

(6) The eyewitness shall not discuss the identification procedure or its results with other eyewitnesses involved in the incident and shall not speak with the media; and

(7) Any additional information required by procedures and protocols established by the attorney general pursuant to section -4.

(b) In any photo or live lineup or showup, law enforcement shall not contaminate the eyewitness identification by:

(1) Requiring the suspect to wear distinctive clothing that the alleged perpetrator wore;

(2) Allowing the eyewitness to view the suspect in handcuffs or otherwise appear to be in law enforcement custody; and

(3) Using any suggestive procedures.

(1) For a photo lineup, include at least five fillers in addition to the suspect;

(2) For a live lineup, include at least four fillers in addition to the suspect; and

(3) Any other procedures and protocols established by the attorney general pursuant to section -4.

(d) In any showup, law enforcement shall comply with the following, as applicable:

(1) Conduct a showup only by using a live suspect and only under exigent circumstances that require the immediate display of a suspect to an eyewitness; and

(2) If possible, perform a photo or live lineup instead of a showup and use a blind or blinded administrator;

(3) Document in writing the reasons why a showup was performed instead of a photo or live lineup; and

(4) Comply with any other procedures and protocols established by the attorney general pursuant to section -4.

§ -3 Admissibility of eyewitness identification. If a court determines that the eyewitness identification is admissible, the court shall instruct the jury when admitting such evidence and prior to the jury's deliberation, when applicable:

(1) That the purpose of this chapter is to reduce the risk of eyewitness misidentification; and

(2) That the jury may consider credible evidence of noncompliance with this chapter when assessing the reliability of the eyewitness identification evidence.

§ -4 Statewide eyewitness identification procedures. Notwithstanding any law to the contrary, the attorney general shall establish procedures and protocols that shall be uniform throughout the State and counties for eyewitness identification."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. This Act shall take effect on January 7, 2059.

THE SENATE	S.B. NO.	147
TWENTY-EIGHTH LEGISLATURE, 2015		S.D. 1
STATE OF HAWAII