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A BILL TO BE ENTITLED
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AN ACT
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relating to photograph and live lineup identification procedures in |
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criminal cases. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.20 to read as follows: |
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Art. 38.20. PHOTOGRAPH AND LIVE LINEUP IDENTIFICATION |
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PROCEDURES. |
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Sec. 1. (a) Each law enforcement agency in this state shall |
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adopt and as necessary amend a detailed written policy regarding |
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the administration of photograph and live lineup identification |
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procedures that conforms to the requirements of Section 2. The |
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policy must address the manner in which a photograph array or live |
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lineup should be administered to an illiterate person or a person |
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with limited English language proficiency. |
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(b) The Texas Commission on Law Enforcement Officer |
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Standards and Education, in consultation with state and local law |
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enforcement agencies and scientific experts, shall develop, adopt, |
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and disseminate to all state and local law enforcement agencies in |
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this state a model policy and associated training materials |
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regarding the administration of photograph and live lineup |
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identification procedures. The model policy must conform to the |
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requirements of Section 2. |
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Sec. 2. (a) Before a photograph or live lineup |
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identification procedure, the person administering the procedure |
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shall: |
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(1) inform the witness that: |
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(A) the offender may not be among those shown; |
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(B) the witness is not required to make an |
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identification; and |
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(C) the investigation of the case will continue |
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regardless of whether the witness makes an identification; and |
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(2) obtain from the witness a written acknowledgement |
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of receipt of the instructions required by this subsection. |
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(b) If the witness identifies an individual as the offender, |
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the person administering the photograph or live lineup |
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identification procedure shall require the witness to characterize |
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in writing, in the witness's own words, the degree of certainty of |
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the witness that the individual identified is the offender. The |
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person administering the procedure must obtain the statement |
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required under this subsection before providing any information |
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concerning the identified individual to the witness. |
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(c) If practicable, a photograph or live lineup |
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identification procedure must be videotaped. If the procedure is |
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not videotaped, the person administering the procedure shall |
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document in writing the reason the procedure was not videotaped and |
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if practicable shall audiotape the procedure instead. If the |
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procedure is not audiotaped, the person administering the procedure |
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shall document in writing the reason the procedure was not |
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audiotaped. To the extent applicable, a videotaped or audiotaped |
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recording of a photograph or live lineup identification procedure |
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must include, as applicable, a visual or audio representation of |
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the entire procedure. Any documentation of a photograph or live |
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lineup identification procedure shall be kept in the case file, |
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regardless of the outcome of the procedure. |
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(d) Each member of a photograph array or live lineup must |
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resemble the witness's description of the offender's significant |
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features, such as the offender's facial features, weight, or build, |
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including any unique or unusual features, such as a scar or tattoo. |
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In a live lineup, each lineup member shall perform identifying |
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actions, such as speech, gestures, or movements, specified by the |
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witness in describing the offender. In a photograph array, the |
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photograph of the suspect must be recent and, if possible, resemble |
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the suspect's appearance at the time the offense was committed. |
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Only one member of a photograph array or live lineup may be a |
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suspect in the case. The remaining members must be individuals who |
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are not suspects but who, without appearing to be significantly |
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different from the suspect, resemble the witness's description of |
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the offender as required by this subsection. Five or more |
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individuals who are not suspects must be included in a photograph |
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array, and four or more individuals who are not suspects must be |
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included in a live lineup. |
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(e) If practicable, the person who administers a photograph |
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or live lineup identification procedure may not be made aware of |
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which member of the photograph array or live lineup is the suspect |
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in the case. If the person who administers the procedure is aware |
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of the identity of the suspect, the person shall use an alternative |
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method of blind administration of the array or lineup that prevents |
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that person from viewing the members of the array or lineup |
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simultaneously with the witness or knowing the order of the |
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presentation of the array or lineup to the witness. |
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(f) All participants in a live lineup or all photographs in |
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a photograph array must be kept from the view of a witness before |
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the identification procedure begins. |
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(g) If multiple witnesses will view the same photograph |
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array or live lineup, the witnesses shall be segregated before and |
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during the administration of the identification procedure. |
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SECTION 2. (a) The Texas Commission on Law Enforcement |
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Officer Standards and Education shall develop, adopt, and |
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disseminate the model policy required by Article 38.20, Code of |
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Criminal Procedure, as added by this Act, not later than March 1, |
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2010. Each law enforcement agency in this state shall adopt the |
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policy required by Article 38.20, Code of Criminal Procedure, as |
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added by this Act, not later than September 1, 2010. |
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(b) Article 38.20, Code of Criminal Procedure, as added by |
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this Act, applies to any photograph or live lineup identification |
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procedure that is conducted on or after the effective date of this |
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Act. |
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SECTION 3. This Act takes effect September 1, 2009. |