A bill

 

TO AMEND THE SOUTH CAROLINA Code of Laws BY ADDING CHAPTER 14 TO TITLE 17 SO AS TO ESTABLISH GUIDELINES FOR EYEWITNESS IDENTIFICATIONS AT PHOTOGRAPHIC AND LIVE LINEUPS, AND SHOW-UPS.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Title 17 of the S.C. Code is amended by adding:

 

CHAPTER 14

 

Eyewitness Identification

 

    Section 17-14-1410.  (A) As contained in this article:

       (1) "Eyewitness" means a person, including a law enforcement officer, whose identification by sight of another person may be relevant in a criminal proceeding.

       (2) "Filler" means a person or a photograph of a person who is not suspected of an offense and is included in a lineup.

       (3) "Independent administrator" means a lineup administrator who is not participating in the investigation of a criminal offense and is unaware of which person in the lineup is the suspect.

       (4) "Lineup" means a photo lineup or live lineup.

       (5) "Lineup administrator" means a person who conducts a lineup.

       (6) "Live lineup" means a procedure in which a group of people is displayed to an eyewitness for the purpose of determining whether the eyewitness can identify the perpetrator of a crime.

       (7) "Photographic lineup" means a procedure in which an array of photographs is displayed to an eyewitness for the purpose of determining if the eyewitness can identify the perpetrator of a crime.

       (8) "Show-up" means a procedure in which an eyewitness is presented with a single live suspect for the purpose of determining whether the eyewitness can identify the perpetrator of a crime.

    (B) Lineups conducted by state, county, and other local law enforcement officers:

       (1) must be conducted by an independent administrator or by an alternative method as provided by subsection (N);

       (2) must have individuals or photos presented to witnesses sequentially, with each individual or photo presented to the witness separately, in a previously determined order, and removed after it is viewed before the next individual or photo is presented; and

       (3) must ensure, before a lineup, the eyewitness is instructed that:

           (a) the perpetrator of the crime might or might not be presented in the lineup;

           (b) the lineup administrator does not know the suspect's identity;

           (c) the eyewitness should not feel compelled to make an identification;

           (d) it is as important to exclude innocent persons as it is to identify the perpetrator; and

           (e) the investigation will continue whether or not an identification is made.

The eyewitness shall acknowledge receipt of the instructions in writing. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the acknowledgement and shall also sign the acknowledgement.

    (C) In a photographic lineup, the photograph of the suspect must be contemporary and, to the extent practicable, shall resemble the suspect's appearance at the time of the offense.

    (D) The lineup must be composed so that the fillers generally resemble the eyewitness' description of the perpetrator, while ensuring the suspect does not unduly stand out from the fillers. In addition:

       (1) all fillers selected shall resemble, as much as practicable, the eyewitness' description of the perpetrator in significant features, including any unique or unusual features;

       (2) at least five fillers must be included in a photographic lineup, in addition to the suspect;

       (3) at least five fillers must be included in a live lineup, in addition to the suspect;

       (4) if the eyewitness previously has viewed a photographic 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 current suspect participates must be different from the fillers used in any prior lineups.

    (E) If there are multiple eyewitnesses, the suspect must be placed in a different position in the lineup or photo array for each eyewitness.

    (F) In a lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect must be visible or made known to the eyewitness.

    (G) In a live lineup:

       (1) any identifying actions, such as speech, gestures, or other movements, must be performed by all lineup participants;

        (2) all lineup participants must be out of view of the eyewitness prior to the lineup; and

       (3) only one suspect must be included in a lineup.

    (H) Nothing must be said to the eyewitness regarding the suspect's position in the lineup or regarding anything that might influence the eyewitness' identification.

    (I) The lineup administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness' own words, as to the eyewitness' confidence level that the person identified in each lineup is the perpetrator. The lineup administrator shall separate all witnesses to discourage witnesses from conferring with one another before or during the procedure. Each witness must be given instructions regarding the identification procedures without other witnesses present.

    (J) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided with any information concerning the person before the lineup administrator obtains the eyewitness' confidence statement about the selection. No one shall be present during the live lineup or photographic identification procedures who knows the suspect's identity, except the eyewitness and legal counsel.

    (K) Unless it is not practical, a video record of live identification procedures must be made. If a video recording is not practical, the reasons must be documented, and an audio recording must be made. If neither a video or audio recording is practical, the reasons must be documented, and the lineup administrator shall make a written record of the lineup.

    (L) Whether video, audio, or in writing, the record shall include:

       (1) all identification and nonidentification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness' confidence statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation;

       (2) the names of all persons present at the lineup;

       (3) the date, time, and location of the lineup;

       (4) the words used by the eyewitness in any identification, including words that describe the eyewitness's certainty of identification;

       (5) whether it was a photo lineup or live lineup and how many photographic or individuals were presented in the lineup;

       (6) the sources of all photographs or persons used;

       (7) in a photo lineup, the photographs; and

       (8) in a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.

    (M) In lieu of using an independent administrator, a photo lineup eyewitness identification procedure may be conducted using an alternative method specified and approved by the South Carolina Law Enforcement Training Council. Any alternative method must be carefully structured to achieve neutral administration and to prevent the administrator from knowing which photograph is being presented to the eyewitness during the identification procedure. Alternative methods include:

       (1) automated computer programs that can automatically administer the photographic lineup directly to an eyewitness and prevent the administrator from seeing which photo the witness is viewing until after the procedure is completed;

       (2) a procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the administrator cannot see or track which photograph is being presented to the witness until after the procedure is completed; or

       (3) any other procedures that achieve neutral administration.

    (N) A show-up conducted by state, county, and other local law enforcement officers:

       (1) must be conducted only when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness; and

       (2) must be performed only using a live suspect and must not be conducted with a photograph.

    (O) Investigators shall photograph a suspect at the time and place of a show-up to preserve a record of the appearance of the suspect at the time of the show-up procedure.

    (P) An investigator shall photograph a juvenile suspect who is ten years of age or older at the time and place of a show-up if the juvenile is reported to have committed a crime not eligible for a diversion program. Photographs of juveniles must be disposed of if an action is not filed against the juvenile or the juvenile is not convicted of an offense. Photographs taken pursuant to this subsection are not public record and may be examined only by court order. However, the following persons may examine them without a court order:

       (1) the juvenile or the juvenile's attorney;

       (2) the juvenile's parent or guardian; and

       (3) the solicitor.

    (Q) The South Carolina Law Enforcement Training Council shall develop a policy regarding standard procedures for the conduct of show-ups in accordance with this section. The policy shall apply to all law enforcement agencies and shall address the following issues, in addition to the provisions of this section:

       (1) standard instructions for eyewitnesses;

       (2) confidence statements by eyewitnesses, including information related to the eyewitness' vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any;

       (3) training of law enforcement officers specific to conducting show-ups; and

       (4) any other matters deemed appropriate by the South Carolina Law Enforcement Training Council.

    (R) The following remedies are available as consequences of compliance or noncompliance with the requirements of this section:

       (1) failure to comply with the requirements of this section must be considered by the court in adjudicating motions to suppress eyewitness identification;

       (2) failure to comply with the requirements of this section is admissible in support of claims of eyewitness misidentification, if the evidence is otherwise admissible; and

       (3) when evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications.

    (S) Nothing in this section must be construed to require a law enforcement officer while acting in his official capacity to be required to participate in a show-up as an eyewitness.

 

SECTION 2.  This act takes effect upon approval by the Governor.

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