By: Hayley Graves

Criminal eyewitness identification procedures – say that three times fast – are when a law enforcement officer asks a witness to look at photos or a lineup of individuals to identify a suspect. SB 923 by Senator Scott Wiener (D – San Francisco) requires California law enforcement agencies to use certain scientifically proven eyewitness identification procedures. Currently only four counties in California have such procedures in place. This bill would require every police department in California to use the new the procedures.

First, and most importantly, the criminal justice system works best when the truth is discovered. Without the truth of what happened, prosecutors, defense attorneys, judges, and jurors must make a best guess of the truth. And when they make that guess someone could be wrongly convicted or mistakenly freed. In several of those instances, 12 out of 13 convictions based on false eyewitness testimony have been overturned by DNA evidence in California.

There is no statewide standard in California for eyewitness identification procedures. SB 923 standardizes the steps officers need to take when administering eyewitness identification procedures. Those steps include: (1) the officer does not know the identity of the suspect; (2) the officer gives specific instructions to the eyewitness, including telling the eyewitness to not feel compelled to make an identification; (3) and the officer records the entire process for quality assurance.

SB 923 does not fully adopt every aspect of modern scientific procedures. The bill requires simultaneous displays—meaning six photos or six individuals are in the lineup at a time. Research shows that is not an accurate way of identification. Research has proven that sequential displays are more effective. In a sequential display, the eyewitness is matching their memory to the single photo or person in front of them. In simultaneous, the eyewitness is matching all the other photos or persons against the other photos and persons. Rather than relying on memory, the eyewitness relies on the other photos or individuals to make their selection.

The bill requires the entire identification process to be visually and aurally recorded. The goal of this provision is to make sure all the procedures are followed. However, this provision fails to address sensitive eyewitnesses. A rape victim might feel uncomfortable and unwilling to be recorded as she or he views a live lineup of potential suspects who sexually assaulted him or her. Or a gang member might fear being recorded while informing on a fellow gang member and refuse to assist the police. The bill only allows for video recording not be used if it is not “feasible.” There are no definitions of feasibility. This may lead to litigation over its meaning.

Existing law provides that when a defendant is not afforded a fair trial because an administrator coached an eyewitness into a faulty identification—the defendant’s due process rights have been violated. SB 923 provides that it does not affect the admissibility of evidence at trial. Therefore, if there has been an improper identification procedure, the identification is admissible in trial.

The goal of SB 923 was to create standardized procedures for all of California law enforcement when conducted criminal eyewitness identification procedures. Although SB 923 does not embrace every aspect of scientific eyewitness identification procedures, if the bill is enacted it will likely help reduce eyewitness misidentifications in California.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Hayley Graves is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.