Illinois General Assembly - Full Text of HB2763
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Full Text of HB2763  101st General Assembly




State of Illinois
2019 and 2020


Introduced , by Rep. Frances Ann Hurley


725 ILCS 5/107A-2

    Amends the Code of Criminal Procedure of 1963. Provides that the lineup may be video recorded if the eyewitness consents.

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HB2763LRB101 08912 SLF 54002 b

1    AN ACT concerning criminal law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 107A-2 as follows:
6    (725 ILCS 5/107A-2)
7    Sec. 107A-2. Lineup procedure.
8    (a) All lineups shall be conducted using one of the
9following methods:
10        (1) An independent administrator, unless it is not
11    practical or, if the eyewitness consents, the lineup may be
12    video recorded.
13        (2) An automated computer program or other device that
14    can automatically display a photo lineup to an eyewitness
15    in a manner that prevents the lineup administrator from
16    seeing which photograph or photographs the eyewitness is
17    viewing until after the lineup is completed. The automated
18    computer program may present the photographs to the
19    eyewitness simultaneously or sequentially, consistent with
20    the law enforcement agency guidelines required under
21    subsection (b) of this Section.
22        (3) A procedure in which photographs are placed in
23    folders, randomly numbered, and shuffled and then



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1    presented to an eyewitness such that the lineup
2    administrator cannot see or know which photograph or
3    photographs are being presented to the eyewitness until
4    after the procedure is completed. The photographs may be
5    presented to the eyewitness simultaneously or
6    sequentially, consistent with the law enforcement agency
7    guidelines required under subsection (b) of this Section.
8        (4) Any other procedure that prevents the lineup
9    administrator from knowing the identity of the suspected
10    perpetrator or seeing or knowing the persons or photographs
11    being presented to the eyewitness until after the procedure
12    is completed.
13    (b) Each law enforcement agency shall adopt written
14guidelines setting forth when, if at all, simultaneous lineups
15shall be conducted and when, if at all, sequential lineups
16shall be conducted. This subsection does not establish a
17preference for whether a law enforcement agency should conduct
18simultaneous lineups or sequential lineups. Whether and when to
19conduct simultaneous lineups or sequential lineups is at the
20discretion of each law enforcement agency. If, after the
21effective date of this amendatory Act of the 98th General
22Assembly, a method of conducting a lineup different from a
23simultaneous or sequential lineup is determined by the Illinois
24Supreme Court to be sufficiently established to have gained
25general acceptance as a reliable method for eyewitness
26identifications and provides more accurate results than



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1simultaneous or sequential lineups, a law enforcement agency
2may adopt written guidelines setting forth when, if at all,
3this different method of conducting lineups shall be used and,
4when feasible, the provisions of subsection (d) of this Section
5shall apply to the use of these methods.
6    (c) On and after the effective date of this amendatory Act
7of the 98th General Assembly, there is no preference as to
8whether a law enforcement agency conducts a live lineup or a
9photo lineup and to the extent that the common law directs
10otherwise, this direction is abrogated.
11    (d) If a lineup administrator conducts a sequential lineup,
12the following shall apply:
13        (1) Solely at the eyewitness's request, the lineup
14    administrator may present a person or photograph to the
15    eyewitness an additional time but only after the eyewitness
16    has first viewed each person or photograph one time.
17        (2) If the eyewitness identifies a person as a
18    perpetrator, the lineup administrator shall continue to
19    sequentially present the remaining persons or photographs
20    to the eyewitness until the eyewitness has viewed each
21    person or photograph.
22    (e) Before a lineup is conducted:
23        (1) The eyewitness shall be instructed that:
24            (A) if recording the lineup is practical, an audio
25        and video recording of the lineup will be made for the
26        purpose of accurately documenting all statements made



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1        by the eyewitness, unless the eyewitness refuses to the
2        recording of the lineup, and that if a recording is
3        made it will be of the persons in the lineup and the
4        eyewitness;
5            (B) the perpetrator may or may not be presented in
6        the lineup;
7            (C) if an independent administrator is conducting
8        the lineup, the independent administrator does not
9        know the suspected perpetrator's identity or if the
10        administrator conducting the lineup is not an
11        independent administrator, the eyewitness should not
12        assume that the lineup administrator knows which
13        person in the lineup is the suspect;
14            (D) the eyewitness should not feel compelled to
15        make an identification;
16            (E) it is as important to exclude innocent persons
17        as it is to identify a perpetrator; and
18            (F) the investigation will continue whether or not
19        an identification is made.
20        (2) The eyewitness shall acknowledge in writing the
21    receipt of the instructions required under this subsection
22    and, if applicable, the refusal to be recorded. If the
23    eyewitness refuses to sign the acknowledgement, the lineup
24    administrator shall note the refusal of the eyewitness to
25    sign the acknowledgement and shall also sign the
26    acknowledgement.



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1    (f) In conducting a lineup:
2        (1) When practicable, the lineup administrator shall
3    separate all eyewitnesses in order to prevent the
4    eyewitnesses from conferring with one another before and
5    during the lineup procedure. If separating the
6    eyewitnesses is not practicable, the lineup administrator
7    shall ensure that all eyewitnesses are monitored and that
8    they do not confer with one another while waiting to view
9    the lineup and during the lineup.
10        (2) Each eyewitness shall perform the identification
11    procedures without any other eyewitness present. Each
12    eyewitness shall be given instructions regarding the
13    identification procedures without other eyewitnesses
14    present.
15        (3) The lineup shall be composed to ensure that the
16    suspected perpetrator does not unduly stand out from the
17    fillers. In addition:
18            (A) Only one suspected perpetrator shall be
19        included in a lineup.
20            (B) The suspected perpetrator shall not be
21        substantially different in appearance from the fillers
22        based on the eyewitness's previous description of the
23        perpetrator or based on other factors that would draw
24        attention to the suspected perpetrator.
25            (C) At least 5 fillers shall be included in a photo
26        lineup, in addition to the suspected perpetrator.



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1            (D) When practicable, at least 5 fillers shall be
2        included in a live lineup, in addition to the suspected
3        perpetrator, but in no event shall there be less than 3
4        fillers in addition to the suspected perpetrator.
5            (E) If the eyewitness has previously viewed a photo
6        lineup or live lineup in connection with the
7        identification of another person suspected of
8        involvement in the offense, the fillers in the lineup
9        in which the current suspected perpetrator
10        participates shall be different from the fillers used
11        in the prior lineups.
12        (4) If there are multiple eyewitnesses, subject to the
13    requirements in subsection (a) of this Section and to the
14    extent possible, the suspected perpetrator shall be placed
15    in a different position in the lineup or photo array for
16    each eyewitness.
17        (5) Nothing shall be communicated to the eyewitness
18    regarding the suspected perpetrator's position in the
19    lineup or regarding anything that may influence the
20    eyewitness's identification.
21        (6) No writings or information concerning any previous
22    arrest, indictment, or conviction of the suspected
23    perpetrator shall be visible or made known to the
24    eyewitness.
25        (7) If a photo lineup, the photograph of the suspected
26    perpetrator shall be contemporary in relation to the



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1    photographs of the fillers and, to the extent practicable,
2    shall resemble the suspected perpetrator's appearance at
3    the time of the offense.
4        (8) If a live lineup, any identifying actions, such as
5    speech, gestures, or other movements, shall be performed by
6    all lineup participants.
7        (9) If a live lineup, all lineup participants must be
8    out of view of the eyewitness prior to the lineup.
9        (10) The lineup administrator shall obtain and
10    document any and all statements made by the eyewitness
11    during the lineup as to the perpetrator's identity. When
12    practicable, an audio or video recording of the statements
13    shall be made.
14        (11) If the eyewitness identifies a person as the
15    perpetrator, the eyewitness shall not be provided any
16    information concerning the person until after the lineup is
17    completed.
18        (12) Unless otherwise allowed under subsection (a) of
19    this Section, there shall not be anyone present during a
20    lineup who knows the suspected perpetrator's identity,
21    except the eyewitness and suspected perpetrator's counsel
22    if required by law.
23    (g) The lineup administrator shall make an official report
24of all lineups, which shall include all of the following
26        (1) All identification and non-identification results



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1    obtained during the lineup, signed by the eyewitness,
2    including any and all statements made by the eyewitness
3    during the lineup as to the perpetrator's identity as
4    required under paragraph (10) of subsection (f) of this
5    Section. If the eyewitness refuses to sign, the lineup
6    administrator shall note the refusal of the eyewitness to
7    sign the results and shall also sign the notation.
8        (2) The names of all persons who viewed the lineup.
9        (3) The names of all law enforcement officers and
10    counsel present during the lineup.
11        (4) The date, time, and location of the lineup.
12        (5) Whether it was a photo lineup or live lineup and
13    how many persons or photographs were presented in the
14    lineup.
15        (6) The sources of all persons or photographs used as
16    fillers in the lineup.
17        (7) In a photo lineup, the actual photographs shown to
18    the eyewitness.
19        (8) In a live lineup, a photograph or other visual
20    recording of the lineup that includes all persons who
21    participated in the lineup.
22        (9) If applicable, the eyewitness's refusal to be
23    recorded.
24        (10) If applicable, the reason for any
25    impracticability in strict compliance with this Section.
26    (h) Unless it is not practical or the eyewitness refuses, a



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1video record of all lineup procedures shall be made.
2        (1) If a video record is not practical or the
3    eyewitness refuses to allow a video record to be made:
4            (A) the reasons or the refusal shall be documented
5        in the official report required under subsection (g) of
6        this Section;
7            (B) an audio record shall be made, if practical;
8        and
9            (C) if a live lineup, the lineup shall be
10        photographed.
11        (2) If an audio record is not practical, the reasons
12    shall be documented in the official report required under
13    subsection (g) of this Section.
14    (i) The photographs, recordings, and the official report of
15the lineup required by this Section shall be disclosed to
16counsel for the accused as provided by the Illinois Supreme
17Court Rules regarding discovery. All photographs of suspected
18perpetrators shown to an eyewitness during a lineup shall be
19disclosed to counsel for the accused as provided by the
20Illinois Supreme Court Rules regarding discovery. To protect
21the identity of the eyewitness and the identities of law
22enforcement officers used as fillers in the lineup from being
23disclosed to third parties, the State's Attorney shall petition
24the court for a protective order under Supreme Court Rule 415
25upon disclosure of the photographs or recordings to the counsel
26of the accused.



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1    (j) All of the following shall be available as consequences
2of compliance or noncompliance with the requirements of this
4        (1) Failure to comply with any of the requirements of
5    this Section shall be a factor to be considered by the
6    court in adjudicating a motion to suppress an eyewitness
7    identification or any other motion to bar an eyewitness
8    identification. These motions shall be in writing and state
9    facts showing how the identification procedure was
10    improper. This paragraph (1) makes no change to existing
11    applicable common law or statutory standards or burdens of
12    proof.
13        (2) When warranted by the evidence presented at trial,
14    the jury shall be instructed that it may consider all the
15    facts and circumstances including compliance or
16    noncompliance with this Section to assist in its weighing
17    of the identification testimony of an eyewitness.
18    (k) Any electronic recording made during a lineup that is
19compiled by any law enforcement agency as required by this
20Section for the purposes of fulfilling the requirements of this
21Section shall be confidential and exempt from public inspection
22and copying, as provided under Section 7 of the Freedom of
23Information Act, and the recording shall not be transmitted to
24any person except as necessary to comply with this Section.
25(Source: P.A. 98-1014, eff. 1-1-15.)