SB 200-EYEWITNESSES AND LINEUPS  1:49:31 PM CHAIR FRENCH announced the consideration of SB 200, "An Act establishing certain procedures related to the identification of suspects by eyewitnesses to criminal offenses." Speaking as the sponsor, he said this addresses the way eyewitness evidence is handled in the state. He paraphrased the following sponsor statement: Evidence provided by eyewitnesses is a vital part of many criminal investigations. According to the International Association of Chiefs of Police, some 77,000 people nationwide go to trial each year because eyewitness testimony is arguably some of the most powerful evidence presented at a trial. Since 1989, however, DNA technology has resulted in over 230 exonerations of people who, on average, had served 12 years in prison, and 75 percent of those convictions involved misidentifications by eyewitnesses. When innocent people are convicted, not only do they suffer an enormous injustice, but the real perpetrator is never caught and taken off the street. Organizations such as the American Bar Association, The Police Foundation and the National Institute of Justice have identified procedures that improve the accuracy of eyewitness identifications. Senate Bill 200 will require law enforcement agencies to adopt specific procedures for conducting photo and live lineups. It will require the Department of Public Safety to create and administer a training program for law enforcement officers on scientific findings and the use of appropriate methods when interviewing eyewitnesses to crimes. I urge your support for this important step toward ensuring that perpetrators are caught, and innocent people are screened out during eyewitness processes. CHAIR FRENCH said the bill compels a law enforcement agency that conducts eyewitness identification to adopt specific procedures that meet specific minimum requirements. This is to provide flexibility to accommodate the broad range of agencies around the state. The idea is that before there is a photo or live lineup, the law enforcement officer shall record a detailed description of the perpetrator, provided in the eyewitness's own words. The statement must include information regarding the conditions under which he or she observed the perpetrator, including location, time, distance, obstructions, lighting, weather conditions, visual and other impairments. When possible, an independent administrator shall conduct the lineup, but when that is not practical the administrator shall use neutral procedures. Ideally, the lineup is conducted by an officer who does not know the identity of the suspect. CHAIR FRENCH noted that Anchorage attorney John Murtagh sent a letter to suggest the committee review the eyewitness case of Tegoseak v. State. It was a felony DWI case where the driver and passenger switched places. The eyewitness identification procedures were upheld on appeal but in discussing the case, the court of appeals described another case that clearly illustrated the problems of eyewitness identification. He related the details of a rape case that was aired in a "60 Minutes" story. The victim identified her rapist in a photograph lineup, a live lineup and during two separate trials. He was convicted both times. Ten years after the rape, DNA testing proved that he was innocent. The court of appeals commented that it was particularly troubling that the victim's false memory persisted even after she knew intellectually that it was inaccurate. The court said her false memory was clearly the result of the identification procedures employed during the investigation, and that the legal tests for establishing the validity of eyewitness identification procedures needed to be reconsidered. 1:57:23 PM SENATOR COGHILL asked if there were Alaska statistics regarding eyewitness identifications that were overturned by DNA testing. CHAIR FRENCH said the professionals who would testify may have numbers to offer. SENATOR PASKVAN commented on the interesting dynamic of human error in eyewitness identification as well as false confession. 1:59:04 PM SENATOR MCGUIRE joined the committee. SENATOR WIELECHOWSKI asked what would happen if the law enforcement officer didn't record all the relevant information that was called for in Section 1. For example, what would happen if the officer neglected to record the weather conditions? CHAIR FRENCH said he did not believe that would automatically exclude the evidence. SENATOR WIELECHOWSKI asked two questions; how was independent administrator defined and what would the procedure be in rural settings. CHAIR FRENCH said the term was defined on page 2, lines 19-21, and it basically means an officer who was involved in the case. Page 2, lines 3-6, give guidance when that is impracticable, stating that a neutral procedure is to be used. 2:02:09 PM STEPHEN SMITH, Deputy Chief of Police, Anchorage Police Department (APD), Anchorage, AK, cautioned against placing the new eyewitness identification proceedings in statute. He said that APD's procedures were not unlike what was suggested in the bill, but Sec. 12.50.300(a)(1) gives more detailed guidance than the APD procedures for a photo lineup. He agreed with Senator Wielechowski's point and expressed appreciation that the sponsor said that leaving out some of the information wouldn't automatically nullify the identification. Rather, it would create opportunity for attack by the defense. He continued that the requirement of an independent administrator would impose a minor burden. He concluded that APD could make this work, but had reservations about rooting reform of this nature in state law at this point. SENATOR PASKVAN asked if departments across the state used different identification procedures for photo lineups. DEPUTY CHIEF SMITH replied he wasn't aware of an articulated statewide standard, so there was the potential for photo lineups to be administered in different ways. CHAIR FRENCH asked if APD had written procedures for how to conduct field sobriety tests. DEPUTY CHIEF SMITH said yes. CHAIR FRENCH asked if an officer sometimes forgets one of the steps in conducting a field sobriety test. DEPUTY CHIEF SMITH agreed that did happen. CHAIR FRENCH asked if the test is admitted and cross examined at trial. DEPUTY CHIEF SMITH said yes and it would probably work the same way for photo lineups. CHAIR FRENCH said that was his belief, but he'd check with DOL. 2:06:46 PM SENATOR WIELECHOWSKI asked if field sobriety tests were in statute or policies enacted by the police department. DEPUTY CHIEF SMITH replied he didn't believe they were in statute, but the National Highway Traffic Safety Administration (NHTSA) promulgated the standardized field sobriety test (SFST), and that federal model had been adopted by most states. CHAIR FRENCH reiterated his intention to find out if procedures that were set in statute and not followed would automatically lead to exclusion of the evidence, or if it would be an area of cross examination. SENATOR WIELECHOWSKI asked if the procedures laid out in Section 1 appeared to be reasonable. DEPUTY CHIEF SMITH replied APD already asks different facets of the information that's listed so it was reasonable. 2:09:22 PM QUINLAN STEINER, Director, Public Defender Agency, Department of Administration (DOA), stated that there was a growing body of evidence that eyewitness testimony was not as reliable as previously thought. There are exonerations and also studies establishing the ease with which misidentification occurs. With regard to the concern that the requirements were too specific and might cause the identification to get thrown out, he pointed out that these types of things were subject to cross examination now. By following these procedures, it would be unlikely to get a finding that would cause an identification to be thrown out. That is the point of establishing a standard, he said. 2:11:30 PM CHAIR FRENCH asked if he was aware of any eyewitness identification cases in Alaska that were overturned. MR. STEINER said not specifically, but he was aware of cases where eyewitness identification was called into question and of cases of false confession. Anything that moves toward eliminating mistakes, improves the outcomes of the criminal justice system, he stated. 2:12:25 PM BILL OBERLY, Executive Director, Alaska Innocence Project, stated that eyewitness reform was very important to the project, primarily because these identifications were the leading contributor to wrongful convictions. He agreed with the sponsor's statistics on DNA exonerations and added that social science research had demonstrated that the human mind is unlike a tape recorder. As with any crime scene evidence, eyewitness memory is subject to contamination and can lead to wrongful conviction. Although the court of appeals in 2009 recognized the need to institute best practices in identification procedures when it ruled on the Tegoseak case, an informal review - and later a freedom of information request - indicated that in 2011 most law enforcement agencies in the state had no procedures at all for eyewitness identification. Extensive social research established six procedures that are being instituted nationwide to make eyewitness identification an effective tool for law enforcement: 1) a proper lineup composition; 2) instructions to the witness; 3) double blind administration of the test; 4) sequential presentation; 5) confidence statements; and 6) recording the procedure. MR. OBERLY highlighted a potential error on page 2, line 5. It indicates that simultaneous presentation is the most neutral administration of a lineup, when it is actually sequential presentation that is the most effective presentation. He said the Alaska Innocence Project views SB 200 as a starting point for bringing law enforcement practices in line with current research on eyewitness identifications. It will help in prosecutions of those who commit crimes and prevention of wrongful convictions. Anticipating a question, he mentioned the DNA testing law that was enacted two years ago, and estimated that in another year or so it would provide examples of wrongful eyewitness identifications. 2:18:40 PM SENATOR COGHILL asked how eyewitness identifications were most typically prejudiced right now. MR. OBERLY said the research shows that when the investigator knows the identity of the suspect, that information is intentionally or unintentionally signaled to the witness. He stressed the importance of eliminating the possibility of that type of situation. SENATOR COGHILL asked if anything in the bill would make it less intimidating to a victim. MR. OBERLY said the victim of a crime will probably always find the eyewitness identification intimidating. He added that because the procedure runs in the background, the eyewitness probably wouldn't know if the lineup was suggestive or had these improvements. 2:22:06 PM JOE AUSTIN, member of the board of directors, Alaska Innocence Project, Anchorage, AK, said he was a retired law enforcement officer and had done lots of lineups during his career. He stated support the bill, but suggested that the minimum number of filler photographs should be five. The normal practice in his experience was to present six photographs that may or may not include the suspect. CHAIR FRENCH observed that it was consistent with current practice and wouldn't be a burden. 2:23:26 PM BARB BRINK, president of the board of directors, Alaska Innocence Project, said she was a public defender for the state for 23 years and was currently working for the federal public defender. She stated support for everything that Mr. Oberly said. She offered statistics to confirm the prevalence of eyewitness misidentifications and to emphasize why these reforms are so critical. She elaborated on the importance of the six procedures that Mr. Oberly mentioned earlier that make eyewitness identification a more effective tool for law enforcement. These were proper lineup composition, instructions to the witness, double blind administration of the test, sequential (not simultaneous) presentation, confidence statements, and recording the procedure. 2:32:14 PM SENATOR WIELECHOWSKI asked if location was an issue in eyewitness identifications. He cited an example of an assault case in a small Alaskan town and eyewitness identification in the field that illustrated a weighted identification. MS. BRINK confirmed the example was highly suggestible as opposed to the bill that suggests the procedure takes place in a quiet location outside the trauma of the moment. The latter is obviously a superior method, she said. CHAIR FRENCH reviewed some of the supporting documents in the packet. One was a training key from the International Association of Chiefs of Police that quoted from the Supreme Court case United States v. Wade. It said the influence of improper suggestion on witnesses was perhaps responsible for more errors than all other factors combined. Another was from the Ramsey County district attorney's office that pointed out that nobody in law enforcement has any interest in convicting the innocent. ANNE CARPENETI, Assistant Attorney General representing the Criminal Division, Department of Law (DOL), introduced herself. 2:36:00 PM SENATOR WIELECHOWSKI asked if DOL thought that failure to follow the procedures would cause the identification to be thrown out or if it would go to the weight of the evidence. He also asked if the administration had a position on the bill. MS. CARPENETI opined that it would go to the weight of the evidence, and said she was pleased that the committee was specifically discussing the point. She then suggested on page 2, lines 2-3, clarifying that the mandatory language was either or. Either a blinded administrator would conduct the lineup or the administrator would use a neutral procedure. CHAIR FRENCH agreed with the suggestion, and added that he also intended to look into whether it was better to use "sequential" rather than "simultaneous" on page 2, line 5. SENATOR PASKVAN commented that it would seem to be fertile ground for defense counsel if a police department didn't have a standard procedure for administering eyewitness identifications. MS. CARPENETI agreed it would be brought into question and added that these things were also the subject of pretrial motions. SENATOR PASKVAN commented on the likelihood of an ineffective assistance of counsel claim if the defense didn't inquire about the fact that their client was misidentified when the department didn't have a standard procedure. MS. CARPENETI said the eyewitness testimony would probably be challenged if the defense was that it was a misidentification. SENATOR WIELECHOWSKI expressed a desire for more certainty as to whether it would go to the weight of the evidence or get the identification thrown out if an officer forgot to record the weather, for example. He questioned how a court would interpret it. CHAIR FRENCH said he would have legislative legal draft a memo on that point. MS. CARPENETI suggested that it could also be addressed in the bill. CHAIR FRENCH said he'd inquire as to the best approach. 2:40:48 PM WALLY TETLOW, President, Alaska Association of Criminal Defense Lawyers, stated strong support for SB 200. The clear purpose of the bill is to strengthen identification procedures used by law enforcement agencies, thereby minimizing wrongful convictions. He highlighted that the statistics show that 75 percent of convictions that are reversed after DNA work is done, were the result of misidentifications. Improving identification procedures will not only minimize wrongful convictions, but also strengthen convictions of the responsible parties. 2:42:48 PM CHAIR FRENCH announced he would hold SB 200 in committee.