State House Committee Releases Draft of Eyewitness ID Bill
(APN) ATLANTA — A bipartisan Georgia House of Representatives study panel released draft legislation November 29, 2007, that, if eventually passed, would require minimum procedures for enhancing witness identification accuracy.
Many of the bill’s requirements come directly from suggestions made during earlier testimony before the special study committee.
For example, the person administering the lineup must be neutral and have no idea who the suspect is so as not to unduly influence the witness with verbal or nonverbal cues.
Other requirements include: telling the witness that the culprit may not be in the lineup and that the witness does not have to pick a person out of the lineup; having only one suspect per lineup; and obtaining a confidence statement from the witness at the time of identification.
Members of the committee heard testimony on possible problems with and suggested amendments to the “Witness Identification Accuracy Enhancement Act.”
Gwendolyn Keyes Fleming, District Attorney for DeKalb County, suggested that there is no need for legislation codifying practices for eyewitness identification at this time.
It is best for individual jurisdictions to decide what procedures are best for eyewitness identification, not the State, she argued.
“It is not prudent to legislate the specifics of how police perform their jobs,” Fleming said.
State Rep. Stephanie Stuckey Benfield (D-Decatur), chairwoman of the special committee and author of the legislation, countered that while she would like to trust jurisdictions to implement their own procedures, she argues that is not realistic.
Fleming argued that Georgia has not spent enough time researching this issue, stating that other states researched the issue for years before passing legislation of this kind.
“I would hate for us to codify something and then in a year change it,” Fleming said.
“How big of a problem are we talking about?” she asked. “In a majority of cases, prosecutors get it right. The system, the way we have it, works.”
So far, 208 people in the United States have been exonerated by DNA evidence. Of these, 75 percent were convicted because of mistaken identity.
In Georgia, 291 law enforcement agencies have no written policy governing the collection of eyewitness evidence using live lineups, photo lineups, or one-on-one show-up identifications, according to a report compiled by The Georgia Innocence Project.
There are well over 100 more agencies in Georgia beyond the 355 represented in the report that did not bother replying to the survey conducted by The Georgia Innocence Project.
Fifty-one agencies that responded to the survey do not conduct lineups at all. These are mostly smaller departments that hire larger agencies like the Georgia Bureau of Investigation to handle the lineups.
Only 41 of the agencies that responded to the survey have written procedures governing the collection of eyewitness evidence using live lineups, photo lineups, and one-on-one show up identifications.
The proposed legislation would require that all law enforcement agencies adopt written procedures that comply at a minimum with requirements outlined by January 01, 2009.
Fleming argued that this bill represents an unfunded mandate, in that the State would force agencies to comply with certain requirements without providing money for agencies to train their employees.
Benfield said her committee is hoping to push the appropriations committee for funding for training during the upcoming legislative session.
Fleming said the bill presents other problems by restricting judicial authority, hampering juries, and adding requirements beyond what is in the U.S. Constitution.
She pointed to a 2005 Georgia Supreme Court decision in Brodes v. State of Georgia that she argued has already contributed to a decrease in wrongful identifications.
In that case, the Supreme Court held that an “eyewitness’s ‘level of certainty’ was not [a] permissible factor for [a] jury to consider in determining reliability of identification.”
“Are we being preemptive in fixing problems the Supreme Court has already fixed?” Fleming asked.
She also noted the requirement in the draft that “each witness shall be asked to give feedback in his or her own words regarding his or her level of confidence in the identification” appears to run contrary to the Brodes ruling.
“If witnesses misremember, can we truly regulate and control the accuracy of their choices?” Fleming asked.
While she agrees that no one wants wrongful convictions, Fleming believes “crime victims should not be sacrificed in our attempts to protect the innocent.”
Meanwhile, Ron Jayson, a former DeKalb County magistrate judge, offered several amendments.
Jayson suggested photos in a lineup should all be of the same size, resolution, and finish. He recalled seeing photo lineups where the photo of the suspect and those of the “fillers” (non-suspects) differed in one of the above ways.
These differences, he argued, could lead a witness in a certain and possibly wrong direction.
Jayson also suggested amending the bill so that lineup fillers “bear a substantially similar likeness to the suspect.”
State Rep. Ed Setzler (R-Acworth) cautioned that fillers should not look so much like the suspect that a witness would be unable to distinguish the choices.
The study committee will meet for a final time on December 13, 2007, to discuss the legislation.
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