(a)For the purposes of this section:
(1)“Eyewitness” means a person who observes another person at or near the scene of an offense;
(2)“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 presented to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator;
(3)“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 presented to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpe
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(a) For the purposes of this section: (1) “Eyewitness” means a person who observes another person at or near the scene of an offense; (2) “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 presented to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator; (3) “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 presented to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator; (4) “Identification procedure” means either a photo lineup or a live lineup; and (5) “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. (b) Not later than February 1, 2013, the Police Officer Standards and Training Council and the Division of State Police within the Department of Emergency Services and Public Protection shall jointly develop and promulgate uniform mandatory policies and appropriate guidelines for the conducting of eyewitness identification procedures that shall be based on best practices and be followed by all municipal and state law enforcement agencies. Said council and division shall also develop and promulgate a standardized form to be used by municipal and state law enforcement agencies when conducting an identification procedure and making a written record thereof. (c) Not later than May 1, 2013, each municipal police department and the Department of Emergency Services and Public Protection shall adopt procedures for the conducting of photo lineups and live lineups that are in accordance with the policies and guidelines developed and promulgated by the Police Officer Standards and Training Council and the Division of State Police within the Department of Emergency Services and Public Protection pursuant to subsection (b) of this section and that comply with the following requirements: (1) Whenever a specific person is suspected as the perpetrator of an offense, the photographs included in a photo lineup or the persons participating in a live lineup shall be presented sequentially so that the eyewitness views one photograph or one person at a time in accordance with the policies and guidelines developed and promulgated by the Police Officer Standards and Training Council and the Division of State Police within the Department of Emergency Services and Public Protection pursuant to subsection (b) of this section; (2) The identification procedure shall be conducted in such a manner that the person conducting the procedure does not know which person in the photo lineup or live lineup is suspected as the perpetrator of the offense, except that, if it is not practicable to conduct a photo lineup in such a manner, the photo lineup shall be conducted by the use of a folder shuffle method, computer program or other comparable method so that the person conducting the procedure does not know which photograph the eyewitness is viewing during the procedure; (3) The eyewitness shall be instructed prior to the identification procedure: (A) That the eyewitness will be asked to view an array of photographs or a group of persons, and that each photograph or person will be presented one at a time; (B) That it is as important to exclude innocent persons as it is to identify the perpetrator; (C) That the persons in a photo lineup or live lineup may not look exactly as they did on the date of the offense because features like facial or head hair can change; (D) That the perpetrator may or may not be among the persons in the photo lineup or live lineup; (E) That the eyewitness should not feel compelled to make an identification; (F) That the eyewitness should take as much time as needed in making a decision; and (G) That the police will continue to investigate the offense regardless of whether the eyewitness makes an identification; (4) In addition to the instructions required by subdivision (3) of this subsection, the eyewitness shall be given such instructions as may be developed and promulgated by the Police Officer Standards and Training Council and the Division of State Police within the Department of Emergency Services and Public Protection pursuant to subsection (b) of this section; (5) The photo lineup or live lineup shall be composed so that the fillers generally fit the 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; (6) 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 or in which the photograph of the person suspected as the perpetrator is included shall be different from the fillers used in any prior lineups; (7) At least five fillers shall be included in the photo lineup and at least four fillers shall be included in the live lineup, in addition to the person suspected as the perpetrator; (8) In a photo lineup, no writings or information concerning any previous arrest of the person suspected as the perpetrator shall be visible to the eyewitness; (9) In a live lineup, any identification actions, such as speaking or making gestures or other movements, shall be performed by all lineup participants; (10) In a live lineup, all lineup participants shall be out of the view of the eyewitness at the beginning of the identification procedure; (11) The person suspected as the perpetrator shall be the only suspected perpetrator included in the identification procedure; (12) 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; (13) Nothing shall be said to the eyewitness that might influence the eyewitness's selection of the person suspected as the perpetrator; (14) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning such person prior to obtaining the eyewitness's statement regarding how certain he or she is of the selection; and (15) A written record of the identification procedure shall be made that includes the following information: (A) 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; (B) The names of all persons present at the identification procedure; (C) The date and time of the identification procedure; (D) In a photo lineup, the photographs presented to the eyewitness or copies thereof; (E) In a photo lineup, identification information on all persons whose photograph was included in the lineup and the sources of all photographs used; and (F) In a live lineup, identification information on all persons who participated in the lineup.
(P.A. 11-252, S. 1; P.A. 12-111, S. 1.) History: (Revisor's note: In Subsec. (b), “Department of Public Safety” was changed editorially by the Revisors to “Department of Emergency Services and Public Protection” to conform with changes made by P.A. 11-51); P.A. 12-111 amended Subsec. (a) to replace “displayed” with “presented” in definitions of “photo lineup” and “live lineup”, added new Subsec. (b) re development and promulgation by February 1, 2013, of uniform mandatory policies and appropriate guidelines for conducting of eyewitness identification procedures and development and promulgation of standardized form and redesignated existing Subsec. (b) as Subsec. (c) and amended same to replace “January 1, 2012” with “May 1, 2013” as deadline for adopting lineup procedures and require such procedures to be in accordance with policies and guidelines developed and promulgated pursuant to Subsec. (b), add new Subdiv. (1) re presentation of photographs or persons sequentially, replace former Subdiv. (1) re conducting of procedure, when practicable, by person not aware of which person in lineup is suspected as perpetrator with new Subdiv. (2) re conducting of procedure in such a manner that person conducting procedure does not know which person in lineup is suspected as perpetrator and, if it is not practicable to conduct photo lineup in such a manner, allowing photo lineup to be conducted using a method so that person conducting procedure does not know which photograph eyewitness is viewing, redesignate existing Subdiv. (2) as Subdiv. (3) and amend same to add new Subpara. (A) re viewing of array of photographs or group of persons and presentation of photographs or persons one at a time, add new Subpara. (B) re importance of excluding innocent persons, add new Subpara. (C) re difference in appearance because of change in features like facial or head hair, redesignate existing Subparas. (A) to (C) as Subparas. (D) to (F) and add new Subpara. (G) re continuation of police investigation, add new Subdiv. (4) re giving of additional instructions developed and promulgated pursuant to Subsec. (b), redesignate existing Subdivs. (3) to (11) as Subdivs. (5) to (13), redesignate existing Subdiv. (12) as Subdiv. (14) and amend same to replace “eyewitness's statement that he or she is certain of the selection” with “eyewitness's statement regarding how certain he or she is of the selection” and redesignate existing Subdiv. (13) as Subdiv. (15) and amend same by replacing in Subpara. (D) “the photographs themselves” with “the photographs presented to the eyewitness or copies thereof”, effective July 1, 2012. Defendant's state constitutional right to due process not violated where police deviated from section requirements; procedures in section are best practices but not constitutionally mandated and state presented ample evidence of both system and estimator variables that support a determination that the photo identification was reliable. 218 CA 555.