According to the Florida Senate, eyewitness misidentification has been cited as the single greatest cause of all wrongful conviction in the State of Florida –accounting for more almost seventy-five percent (75%) of convicting that were later overturned.
While the Florida legislature is fully aware of the problem in eyewitness identifications, if passed, Senate Bill 643 will be the first bill that addresses the proper procedure for conducting live line-ups and photographic identifications.
If passed, Senate Bill 643 will take effect this year, October 1, 2017.
Problems with Eyewitnesses
Florida law allows for multiple types of eyewitness identification procedures. Law enforcement agencies may conduct scene identifications, live line-ups, or photographic identifications. Senate Bill 643 specifically refers to live line-ups and photographic identifications. A photographic line-up consists of showing the witness pictures of similar looking individuals and asking the witness to identify the suspect. A live line-up is the typical lining of suspects behind a two-way mirror with the witness picking the accused out from the lineup.
One of the biggest issues with live and photographic line-ups is implicit bias, among other social factors. Studies have shown that the things that purport bias in eyewitness identifications can be categorized into factors that law enforcement officers can control and those that they cannot control.
Researchers have categorized these variables into two different categories. Estimator variables are those things that the criminal justice system cannot control. Such variables include the following:
- whether a weapon was used;
- the race of the perpetrator; or
- where the crime took place.
Systemic variables are things that can be controlled by the criminal justice system. Some examples of systemic variables include:
- the pictures presented in a photographic lineup;
- the order of the perpetrators;
- what the police says to the witnesses;
- whether the police speak to the witnesses;
- the way the police interact with the identifying witnesses.
The Eyewitness Identification Reform Act
Senate Bill 943 is set to create Florida Statute § 92.70, otherwise known as the “Eyewitness Identification Reform Act.” The Act will apply to any eyewitness identification line up in the State of Florida, regardless of the entity that performs the lineup.
The Act will require that any line be conducted by an independent administrator. If the State does not provide an independent administrator, then it must conduct an alternative method that aims for neutrality and unbiased procedure. For photographic lineups, the procedure may include the following:
- an automated computer program that administers the photo lineup directly to the witness and prevents the lineup administrator from seeing which photograph the witness is viewing until after the lineup is complete;
- a procedure in which the photographs are shuffled and randomly placed in folders in such a way that the administrator cannot see or track the photographs or the way that they are presented to the witness until after the procedure is complete; or
- any other procedure that achieves neutral administration and prevents the lineup administrator from knowing which photograph the witness is viewing until after the lineup is finished.
The Act will require the Criminal Justice Standards & Training Commission (CJSTC) and the Florida Department of Law Enforcement (FDLE) to create educational materials and training on conducting unbiased lineups.
In addition, the Eyewitness Identification Reform Act will require that the witness be given mandatory instructions before any lineup. The witness must acknowledge the instructions in writing, and they must include the following:
- the perpetrator may or may not be in the lineup;
- the lineup administrator does not know the suspect’s identity;
- the investigation will continue with or without an identification;
- the eyewitness should not feel compelled to make an identification, and
- it is as important to exclude an innocent person as it is to identify the perpetrator.
Consequences for Failure to Comply
The consequences that the Act suggests for failure to comply align with the consequences for failing to comply with most evidentiary procedures –inadmissibility. Failing to comply with the procedures set forth in the Eyewitness Identification Reform Act may result in evidence being deemed inadmissible by the court, mandatory consideration of failure to comply with the court, or if the evidence is admitted at trial, then the Act will require that the jury be instructed that it may consider the failure to comply in determining the reliability of the eyewitness.
Senate Bill 643 Analysis– Visit the official website of the Florida Senate for more information on the current status of CS/SB 643, which includes the most current position of the bill in the legislative history, any amendments, and any old bill analyses.
Find an Attorney for Eyewitness Misidentification in Miami-Dade County, FL
Considering the number of wrongful identifications in the State of Florida is disappointing. Misidentifications have contributed to the wrongful convictions of multiple innocent Florida citizens.
If you or someone you know has been wrongfully identified in a crime, call the attorneys at The Hoffman Firm.
Our attorneys have years of experienced fighting for the rights of those who have been wrongfully convicted and incarcerated. We take cases crimes throughout the Miami metropolitan area, including North Miami, Opa-Locka, Coral Gables, and Hialeah, Florida.
Call our office at (305) 249-0090 for more information.