On September 30, 2018, former Governor Jerry Brown approved SB-923. SB-923 legislation added Penal Code section 859.7 to the Penal Code and requires all law enforcement agencies and prosecutorial entities to adopt regulations for conducting photo lineups and live lineups with eyewitnesses in an effort to ensure reliable and accurate suspect identifications. SB-923 requires that the regulations adopted by law enforcement and prosecutorial entities comply with specified requirements such as requiring that the eyewitness provide the description of the perpetrator of the incident prior to conducting the identification procedure and as close in time to the incident as possible.
Penal Code section 859.7 requires that the lineup regulations adopted by law enforcement agencies and prosecutorial entities comply with the following minimum requirements:
- Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall provide the description of the perpetrator of the offense.
- The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.
- If applicable, the investigator shall state in writing the reason the presentation of the lineup was not conducted using blind administration or blinded administration.
- An eyewitness shall be instructed of the following, prior to any identification procedure:
- The perpetrator might not be among the persons in the identification procedure.
- The eyewitness should not feel compelled to make an identification.
- An identification or failure to make an identification will not end the investigation.
- The identification procedure shall be composed so that the fillers generally fit the description of the suspected perpetrator.
- In a photo lineup, writings or information concerning any previous arrest of the suspected perpetrator must not be visible to the witness.
- Only one suspected perpetrator should be included in any identification procedure.
- All witnesses must be separated when viewing an identification procedure.
- Nothing should be said to the eyewitness that might influence his or her identification.
- If the eyewitness makes an identification of a suspected perpetrator, the following apply:
- Investigator must immediately inquire into the eyewitness’ confidence level.
- Information regarding the identified person shall not be provided to the eyewitness until the confidence level is documented.
- Law enforcement must not, at any time, validate or invalidate the eyewitness identification.
- An electronic recording must be made that includes both audio and visual representations of the identification procedures.
This new law is aimed at reducing further false identifications, which contribute to wrongful convictions. This section will become operative on January 1, 2020 and will significantly change how law enforcement must conduct eyewitness identifications.
DISCLAIMER:
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar Law, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.