THE BILL ITSELF
HB 875
Eyewitness Identification
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A bill to be entitled
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An act relating to eyewitness identification; amending
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s. 92.70, F.S.; providing definitions; revising
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eyewitness identification procedures; requiring
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documentation of an eyewitness's description of the
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possible perpetrator of a crime; requiring officers to
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have an evidence-based reason to include a person in a
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lineup; limiting the use of facial recognition
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technology in certain circumstances; specifying the
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composition of a lineup; limiting the number of
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identification procedures that may be conducted as to
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certain persons; specifying that lineups are
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preferable to show-ups or first-time-in-court
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identifications; specifying the circumstances in which
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a show-up or in-court identification may be performed;
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specifying that instructions must be given to an
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eyewitness before any identification procedure;
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revising such instructions; requiring a lineup
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administrator to document any identification or
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nonidentification in a specified manner; requiring
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audio and video recording of an identification
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procedure; providing an exception; providing that
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certain attorneys may be present at an identification
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procedure; specifying the permissible conduct of such
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attorneys during the procedure; providing an effective
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date.
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Be It Enacted by the Legislature of the State of Florida: Section 1. Subsections (2) and (3) of section 92.70,
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Florida Statutes, are amended to read:
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92.70 Eyewitness identification.—
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(2) DEFINITIONS.—As used in this section, the term:
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(a) "Eyewitness" means a person whose identification by
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sight of another person may be relevant in a criminal
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proceeding.
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(b) "Facial recognition technology" means an automated or
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semiautomated tool that captures biometric information that
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analyzes facial features and is used for identification,
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verification, or tracking the location of an individual. The
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term does not include the use of search terms to sort images in
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a database.
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(c) "Filler" means a person or a photograph of a person
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who is not suspected of a crime under investigation and is
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included in an identification procedure.
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(d) "Identification procedure" means a live lineup, photo
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lineup, or show-up.
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(e)(b) "Independent administrator" means a person who is
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not participating in the investigation of a criminal offense and
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is unaware of which person in the lineup is the suspect.
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(f)(c) "Lineup" means a photo lineup or live lineup.
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(g)(d) "Lineup administrator" means the person who
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conducts a lineup.
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(h)(e) "Live lineup" means a procedure in which a group of
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people is displayed to an eyewitness for the purpose of
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determining if the eyewitness can identify the perpetrator of a
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crime.
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(i)(f) "Photo lineup" means a procedure in which an array
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of photographs is displayed to an eyewitness for the purpose of
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determining if the eyewitness can identify the perpetrator of a
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crime.
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(j) "Show-up" means a procedure in which an eyewitness is
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presented with a single suspect for the purpose of determining
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whether the eyewitness identifies the person as the perpetrator
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of a crime.
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(3) EYEWITNESS IDENTIFICATION PROCEDURES.—A lineup
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conducted in this state by a state, county, municipal, or other
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law enforcement agency must meet all of the following
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requirements:
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(a) The lineup must be conducted by an independent
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administrator. However, in lieu of using an independent
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administrator, a law enforcement agency may conduct a photo
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lineup eyewitness identification procedure using an alternative
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method specified in subparagraph 1., subparagraph 2., or
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subparagraph 3. Any alternative method must be carefully
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structured to achieve neutral administration and to prevent the
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lineup administrator from knowing which photograph is being
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presented to the eyewitness during the identification procedure.
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Alternative methods may include any of the following:
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1. An automated computer program that can automatically
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administer the photo lineup directly to an eyewitness and
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prevent the lineup administrator from seeing which photograph
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the eyewitness is viewing until after the procedure is
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completed.
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2. A procedure in which photographs are placed in folders,
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randomly numbered, and shuffled and then presented to an
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eyewitness such that the lineup administrator cannot see or
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track which photograph is being presented to the eyewitness
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until after the procedure is completed.
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3. Any other procedure that achieves neutral
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administration and prevents the lineup administrator from
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knowing which photograph is being presented to the eyewitness
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during the identification procedure.
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(b) Before an identification procedure, a law enforcement
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officer shall record as complete a description as possible of
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the perpetrator of a crime, provided by the eyewitness in the
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eyewitness's own words, and shall include the description in the
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offense report. This statement shall also include, from the
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eyewitness's point of view, information regarding the conditions
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under which the eyewitness observed the perpetrator including
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location, time, distance, obstructions, lighting, weather
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conditions, and other impairments, including, but not limited to
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alcohol, drugs, stress, and visual or auditory disabilities.
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(c) To include a suspect in a lineup, a law enforcement
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officer or agency must have an evidence-based reason to believe
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that such suspect committed the crime under investigation. If
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facial recognition technology is used to identify a suspect, a
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law enforcement officer or agency may not conduct a lineup
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unless there is a basis, independent of the use of facial
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recognition technology, to support a belief that the suspect
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committed the crime under investigation.
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(d) A lineup shall be composed of the suspect and at least
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five fillers who generally resemble the eyewitness's description
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of the perpetrator, and law enforcement must ensure that the
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suspect does not stand out from the fillers in appearance. The
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photograph of the suspect that is included in a photo lineup
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shall be contemporary and shall resemble the suspect's
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appearance at the time of the crime under investigation. The
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photographs and the background context in which such photographs
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are placed shall be free from any characteristics that make any
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photograph stand out.
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1. If there is more than one suspect, only one suspect may
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be included in each identification procedure. If the eyewitness
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has previously viewed a lineup in connection with the
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identification of another person suspected of involvement in the
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crime under investigation, the fillers in the lineup in which
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the current suspect is included must be different from the
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fillers used in any prior lineups.
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2. If there are multiple eyewitnesses to a crime under
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investigation, each eyewitness shall view the identification
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procedure separately and the suspect shall be placed in a
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different position in the lineup for each eyewitness.
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3. Only one identification procedure involving the same
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eyewitness and suspect may be conducted.
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(e) A law enforcement officer or agency shall make efforts
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to perform a lineup instead of a show-up or a first-time-in-
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court identification.
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1. Show-ups may only be performed using a live suspect and
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only in exigent circumstances that require the immediate display
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of a suspect to an eyewitness close to the time and place of the
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crime scene. In the event of a show-up, the eyewitness shall be
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transported to a neutral, non-law enforcement location where the
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suspect is detained for the purpose of a show-up. Unless
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impractical, a show-up may not be conducted when the suspect is
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in a patrol car, noticeably handcuffed, or physically restrained
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by officers.
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2. An eyewitness may not identify the defendant for the
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first time in court unless the prosecutor provides a good reason
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for the failure to conduct an out-of-court identification
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procedure. A relationship of close familiarity that minimizes
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the risk of misidentification, such as that of an immediate
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family member, close friend, or daily coworker shall constitute
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a good reason.
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(f)(b) Before an identification procedure a lineup, the
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eyewitness must be instructed that:
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1. The perpetrator might or might not be in the lineup or,
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in the case of a show-up, might or might not be the person that
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is presented to the eyewitness;
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2. The lineup administrator does not know the suspect's
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identity, except that this instruction need not be given when a
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specified and approved alternative method of neutral
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administration is used;
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3. The eyewitness should not feel compelled to make an
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identification;
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4. It is as important to exclude innocent persons as it is
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to identify the perpetrator; and
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5. The investigation will continue with or without an
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identification;.
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6. After an identification, the administrator will ask the
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eyewitness to state, in his or her own words, how certain he or
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she is of the identification; and
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7. The eyewitness may not discuss the identification
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procedure or results with any other eyewitnesses involved in the
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investigation and may not speak with the media about such
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identification procedure.
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The eyewitness shall acknowledge, in writing, having received a
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copy of the lineup instructions. If the eyewitness refuses to
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sign a document acknowledging receipt of the instructions, the
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lineup administrator must document the refusal of the eyewitness
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to sign a document acknowledging receipt of the instructions,
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and the lineup administrator must sign the acknowledgment
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document himself or herself.
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(g) After an identification procedure, the lineup
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administrator shall document any identification or
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nonidentification. Such documentation shall include a clear
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statement from the eyewitness, at the time of the identification
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and in the eyewitness's own words, as to the eyewitness's
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confidence level that the person he or she identified is the
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perpetrator of the crime under investigation.
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(h) All identification procedures shall be captured by
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audio and video recording unless visual recording is
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unavailable, in which case the recording of audio alone is
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permissible.
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(i) The prosecuting attorney and the suspect's attorney
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may be present during a lineup to observe the manner in which
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the lineup is conducted. Such persons shall be out of the view
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of the eyewitness and shall be instructed to remain silent
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during the procedure and to refrain from exercising any
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influence on the procedure.
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Section 2. This act shall take effect July 1, 2026.