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


Rep. Frances Ann Hurley

Filed: 2/28/2019





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2    AMENDMENT NO. ______. Amend House Bill 2763 by replacing
3everything after the enacting clause with the following:
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 to having the
12    lineup 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



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1    viewing until after the lineup is completed. The automated
2    computer program may present the photographs to the
3    eyewitness simultaneously or sequentially, consistent with
4    the law enforcement agency guidelines required under
5    subsection (b) of this Section.
6        (3) A procedure in which photographs are placed in
7    folders, randomly numbered, and shuffled and then
8    presented to an eyewitness such that the lineup
9    administrator cannot see or know which photograph or
10    photographs are being presented to the eyewitness until
11    after the procedure is completed. The photographs may be
12    presented to the eyewitness simultaneously or
13    sequentially, consistent with the law enforcement agency
14    guidelines required under subsection (b) of this Section.
15        (4) Any other procedure that prevents the lineup
16    administrator from knowing the identity of the suspected
17    perpetrator or seeing or knowing the persons or photographs
18    being presented to the eyewitness until after the procedure
19    is completed.
20    (b) Each law enforcement agency shall adopt written
21guidelines setting forth when, if at all, simultaneous lineups
22shall be conducted and when, if at all, sequential lineups
23shall be conducted. This subsection does not establish a
24preference for whether a law enforcement agency should conduct
25simultaneous lineups or sequential lineups. Whether and when to
26conduct simultaneous lineups or sequential lineups is at the



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1discretion of each law enforcement agency. If, after the
2effective date of this amendatory Act of the 98th General
3Assembly, a method of conducting a lineup different from a
4simultaneous or sequential lineup is determined by the Illinois
5Supreme Court to be sufficiently established to have gained
6general acceptance as a reliable method for eyewitness
7identifications and provides more accurate results than
8simultaneous or sequential lineups, a law enforcement agency
9may adopt written guidelines setting forth when, if at all,
10this different method of conducting lineups shall be used and,
11when feasible, the provisions of subsection (d) of this Section
12shall apply to the use of these methods.
13    (c) On and after the effective date of this amendatory Act
14of the 98th General Assembly, there is no preference as to
15whether a law enforcement agency conducts a live lineup or a
16photo lineup and to the extent that the common law directs
17otherwise, this direction is abrogated.
18    (d) If a lineup administrator conducts a sequential lineup,
19the following shall apply:
20        (1) Solely at the eyewitness's request, the lineup
21    administrator may present a person or photograph to the
22    eyewitness an additional time but only after the eyewitness
23    has first viewed each person or photograph one time.
24        (2) If the eyewitness identifies a person as a
25    perpetrator, the lineup administrator shall continue to
26    sequentially present the remaining persons or photographs



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1    to the eyewitness until the eyewitness has viewed each
2    person or photograph.
3    (e) Before a lineup is conducted:
4        (1) The eyewitness shall be instructed that:
5            (A) if recording the lineup is practical, an audio
6        and video recording of the lineup will be made for the
7        purpose of accurately documenting all statements made
8        by the eyewitness, unless the eyewitness refuses to the
9        recording of the lineup, and that if a recording is
10        made it will be of the persons in the lineup and the
11        eyewitness;
12            (B) the perpetrator may or may not be presented in
13        the lineup;
14            (C) if an independent administrator is conducting
15        the lineup, the independent administrator does not
16        know the suspected perpetrator's identity or if the
17        administrator conducting the lineup is not an
18        independent administrator, the eyewitness should not
19        assume that the lineup administrator knows which
20        person in the lineup is the suspect;
21            (D) the eyewitness should not feel compelled to
22        make an identification;
23            (E) it is as important to exclude innocent persons
24        as it is to identify a perpetrator; and
25            (F) the investigation will continue whether or not
26        an identification is made.



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1        (2) The eyewitness shall acknowledge in writing the
2    receipt of the instructions required under this subsection
3    and, if applicable, the refusal to be recorded. If the
4    eyewitness refuses to sign the acknowledgement, the lineup
5    administrator shall note the refusal of the eyewitness to
6    sign the acknowledgement and shall also sign the
7    acknowledgement.
8    (f) In conducting a lineup:
9        (1) When practicable, the lineup administrator shall
10    separate all eyewitnesses in order to prevent the
11    eyewitnesses from conferring with one another before and
12    during the lineup procedure. If separating the
13    eyewitnesses is not practicable, the lineup administrator
14    shall ensure that all eyewitnesses are monitored and that
15    they do not confer with one another while waiting to view
16    the lineup and during the lineup.
17        (2) Each eyewitness shall perform the identification
18    procedures without any other eyewitness present. Each
19    eyewitness shall be given instructions regarding the
20    identification procedures without other eyewitnesses
21    present.
22        (3) The lineup shall be composed to ensure that the
23    suspected perpetrator does not unduly stand out from the
24    fillers. In addition:
25            (A) Only one suspected perpetrator shall be
26        included in a lineup.



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1            (B) The suspected perpetrator shall not be
2        substantially different in appearance from the fillers
3        based on the eyewitness's previous description of the
4        perpetrator or based on other factors that would draw
5        attention to the suspected perpetrator.
6            (C) At least 5 fillers shall be included in a photo
7        lineup, in addition to the suspected perpetrator.
8            (D) When practicable, at least 5 fillers shall be
9        included in a live lineup, in addition to the suspected
10        perpetrator, but in no event shall there be less than 3
11        fillers in addition to the suspected perpetrator.
12            (E) If the eyewitness has previously viewed a photo
13        lineup or live lineup in connection with the
14        identification of another person suspected of
15        involvement in the offense, the fillers in the lineup
16        in which the current suspected perpetrator
17        participates shall be different from the fillers used
18        in the prior lineups.
19        (4) If there are multiple eyewitnesses, subject to the
20    requirements in subsection (a) of this Section and to the
21    extent possible, the suspected perpetrator shall be placed
22    in a different position in the lineup or photo array for
23    each eyewitness.
24        (5) Nothing shall be communicated to the eyewitness
25    regarding the suspected perpetrator's position in the
26    lineup or regarding anything that may influence the



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1    eyewitness's identification.
2        (6) No writings or information concerning any previous
3    arrest, indictment, or conviction of the suspected
4    perpetrator shall be visible or made known to the
5    eyewitness.
6        (7) If a photo lineup, the photograph of the suspected
7    perpetrator shall be contemporary in relation to the
8    photographs of the fillers and, to the extent practicable,
9    shall resemble the suspected perpetrator's appearance at
10    the time of the offense.
11        (8) If a live lineup, any identifying actions, such as
12    speech, gestures, or other movements, shall be performed by
13    all lineup participants.
14        (9) If a live lineup, all lineup participants must be
15    out of view of the eyewitness prior to the lineup.
16        (10) The lineup administrator shall obtain and
17    document any and all statements made by the eyewitness
18    during the lineup as to the perpetrator's identity. When
19    practicable, an audio or video recording of the statements
20    shall be made.
21        (11) If the eyewitness identifies a person as the
22    perpetrator, the eyewitness shall not be provided any
23    information concerning the person until after the lineup is
24    completed.
25        (12) Unless otherwise allowed under subsection (a) of
26    this Section, there shall not be anyone present during a



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1    lineup who knows the suspected perpetrator's identity,
2    except the eyewitness and suspected perpetrator's counsel
3    if required by law.
4    (g) The lineup administrator shall make an official report
5of all lineups, which shall include all of the following
7        (1) All identification and non-identification results
8    obtained during the lineup, signed by the eyewitness,
9    including any and all statements made by the eyewitness
10    during the lineup as to the perpetrator's identity as
11    required under paragraph (10) of subsection (f) of this
12    Section. If the eyewitness refuses to sign, the lineup
13    administrator shall note the refusal of the eyewitness to
14    sign the results and shall also sign the notation.
15        (2) The names of all persons who viewed the lineup.
16        (3) The names of all law enforcement officers and
17    counsel present during the lineup.
18        (4) The date, time, and location of the lineup.
19        (5) Whether it was a photo lineup or live lineup and
20    how many persons or photographs were presented in the
21    lineup.
22        (6) The sources of all persons or photographs used as
23    fillers in the lineup.
24        (7) In a photo lineup, the actual photographs shown to
25    the eyewitness.
26        (8) In a live lineup, a photograph or other visual



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1    recording of the lineup that includes all persons who
2    participated in the lineup.
3        (9) If applicable, the eyewitness's refusal to be
4    recorded.
5        (10) If applicable, the reason for any
6    impracticability in strict compliance with this Section.
7    (h) Unless it is not practical or the eyewitness refuses, a
8video record of all lineup procedures shall be made.
9        (1) If a video record is not practical or the
10    eyewitness refuses to allow a video record to be made:
11            (A) the reasons or the refusal shall be documented
12        in the official report required under subsection (g) of
13        this Section;
14            (B) an audio record shall be made, if practical;
15        and
16            (C) if a live lineup, the lineup shall be
17        photographed.
18        (2) If an audio record is not practical, the reasons
19    shall be documented in the official report required under
20    subsection (g) of this Section.
21    (i) The photographs, recordings, and the official report of
22the lineup required by this Section shall be disclosed to
23counsel for the accused as provided by the Illinois Supreme
24Court Rules regarding discovery. All photographs of suspected
25perpetrators shown to an eyewitness during a lineup shall be
26disclosed to counsel for the accused as provided by the



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1Illinois Supreme Court Rules regarding discovery. To protect
2the identity of the eyewitness and the identities of law
3enforcement officers used as fillers in the lineup from being
4disclosed to third parties, the State's Attorney shall petition
5the court for a protective order under Supreme Court Rule 415
6upon disclosure of the photographs or recordings to the counsel
7of the accused.
8    (j) All of the following shall be available as consequences
9of compliance or noncompliance with the requirements of this
11        (1) Failure to comply with any of the requirements of
12    this Section shall be a factor to be considered by the
13    court in adjudicating a motion to suppress an eyewitness
14    identification or any other motion to bar an eyewitness
15    identification. These motions shall be in writing and state
16    facts showing how the identification procedure was
17    improper. This paragraph (1) makes no change to existing
18    applicable common law or statutory standards or burdens of
19    proof.
20        (2) When warranted by the evidence presented at trial,
21    the jury shall be instructed that it may consider all the
22    facts and circumstances including compliance or
23    noncompliance with this Section to assist in its weighing
24    of the identification testimony of an eyewitness.
25    (k) Any electronic recording made during a lineup that is
26compiled by any law enforcement agency as required by this



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1Section for the purposes of fulfilling the requirements of this
2Section shall be confidential and exempt from public inspection
3and copying, as provided under Section 7 of the Freedom of
4Information Act, and the recording shall not be transmitted to
5any person except as necessary to comply with this Section.
6(Source: P.A. 98-1014, eff. 1-1-15.)".