June 14, 2007, Introduced by Reps. Bieda, Condino, Kathleen Law, Tobocman, Vagnozzi, Miller, Rick Jones and Alma Smith and referred to the Committee on Judiciary.
A bill to regulate eyewitness identifications; and to provide
for certain powers and duties of certain state and local officers
and agencies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. As used in this act:
(a) "Eyewitness" means a person who observes another person at
or near the scene of a criminal offense.
(b) "Filler" means either a person or a photograph of a person
who is not suspected of an offense but is included in an
identification procedure.
(c) "Identification procedure" means either a photo lineup or
a live lineup.
(d) "Investigator" means the person conducting a live or photo
lineup.
(e) "Live lineup" means a procedure in which a group of
persons, including the person suspected as the perpetrator of an
offense and other persons not suspected of the offense, is
displayed to an eyewitness for the purpose of determining whether
the eyewitness is able to identify the suspect as the perpetrator.
(f) "Photo lineup" means a procedure in which an array of
photographs, including a photograph of the person suspected as the
perpetrator of an offense and additional photographs of other
persons not suspected of the offense, is displayed to an eyewitness
for the purpose of determining whether the eyewitness is able to
identify the suspect as the perpetrator.
(g) "Sequential" means a procedure in a live lineup or photo
lineup in which the eyewitness views only 1 member of the lineup at
a time and is shown all persons or photographs even if
identification has been made before all the persons or photographs
have been viewed.
(h) "Simultaneous" means a procedure in a live lineup or photo
lineup in which the eyewitness views all of the members of a lineup
in a live lineup at the same time or is shown all of the
photographs in a photo lineup at the same time.
Sec. 2. Not later than January 1, 2008, each police department
of a city, village, or township, each county sheriff's department,
and the department of state police shall adopt procedures for the
conducting of photo lineups and live lineups that comply with all
of the following requirements:
(a) When practicable, the investigator shall be a person who
is not aware of which person in the photo lineup or live lineup is
suspected as the perpetrator of the offense and the lineup shall be
presented sequentially. If it is not practicable for the
investigator to be a person who is not aware of which person in the
photo or live lineup is suspected as the perpetrator of the
offense, the lineup shall be presented simultaneously, not
sequentially, and the investigator shall state in writing the
reason that presentation of the lineup was not made by a person who
was not aware of which person in the photo lineup or live lineup
was suspected as the perpetrator of the offense.
(b) The eyewitness shall be given the following instructions
before the identification procedure:
(i) The perpetrator may not be among the persons in the photo
lineup or the live lineup, and it is as important to exclude
innocent persons as it is to identify the perpetrator.
(ii) The eyewitness should not feel compelled to make an
identification.
(iii) If the live lineup or photo lineup is administered in
sequence rather than simultaneously, all of the following
instructions:
(A) Each photograph or person will be viewed 1 at a time.
(B) The photographs or persons will be displayed in random
order.
(C) The eyewitness should take as much time as needed in
making a decision about each photograph or person before moving to
the next one.
(D) All photographs or persons will be shown to the
eyewitness, even if an identification is made before all have been
viewed.
(c) The photo lineup or live lineup shall be composed so that
the fillers generally resemble the eyewitness's description of the
person suspected as the perpetrator and, in the case of a photo
lineup, so that the photograph of the person suspected as the
perpetrator resembles his or her appearance at the time of the
offense and does not unduly stand out.
(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 person suspected as the perpetrator participates shall
be different from the fillers used in any prior lineups.
(e) At least 5 fillers shall be included in the photo lineup
and at least 4 fillers shall be included in the live lineup, in
addition to the person suspected as the perpetrator.
(f) In a photo lineup, any writings or information concerning
any previous arrest of the person suspected as the perpetrator
shall not be visible to the eyewitness.
(g) In a live lineup, any identification actions, such as
speaking or making gestures or other movements, shall be performed
by all lineup participants.
(h) In a live lineup, all lineup participants shall be out of
the view of the eyewitness at the beginning of the identification
procedure.
(i) The person suspected as the perpetrator shall be the only
suspected perpetrator included in the identification procedure.
(j) Nothing shall be said to the eyewitness regarding the
position in the photo lineup or the live lineup of the person
suspected as the perpetrator, except as otherwise provided in
subdivision (b)(iii)(D).
(k) Nothing shall be said to the eyewitness that might
influence the eyewitness's selection of the person suspected as the
perpetrator.
(l) The investigator shall seek, in the eyewitness's own words,
his or her confidence level that the person or persons identified
in the lineup is the suspect.
(m) If the eyewitness identifies a person as the perpetrator,
the eyewitness shall not be provided any information concerning
that person before obtaining the eyewitness's statement that he or
she is certain of the selection.
(n) A written record of the identification procedure shall be
made that includes all of the following information:
(i) All identification and nonidentification results obtained
during the identification procedure, signed by the eyewitness,
including the eyewitness's own words regarding how certain he or
she is of the selection.
(ii) The names of all persons present at the identification
procedure.
(iii) The date and time of the identification procedure.
(iv) In a live or photo lineup where the subjects were
presented sequentially as opposed to simultaneously, the order in
which the photographs or persons were displayed to the eyewitness.
(v) In a photo lineup, the photographs themselves.
(vi) In a photo lineup, identification information and the
sources of all photographs used.
(vii) In a live lineup, a photo or other visual recording of
the lineup that includes all persons who participated in the
lineup.
Sec. 3. (1) Evidence of a failure to comply with any
provisions of section 2 shall be considered by the trial court in
adjudicating motions to suppress eyewitness identification.
(2) Evidence of a failure to comply with any provisions of
section 2 is admissible in support of claims of eyewitness
misidentification as long as that evidence is otherwise admissible.
(3) When evidence of a failure to comply with any provision of
this act has been presented at trial, the jury shall be instructed
that it may consider credible evidence of noncompliance in
determining the reliability of eyewitness identifications.
Sec. 4. Subject to appropriations being made for that purpose,
the department of state police shall create, administer, and
conduct training programs for law enforcement officers and recruits
on the methods and technical aspects of the eyewitness
identification practices and procedures referenced in this act.