Art. 253. Eyewitness identification procedures

A.(1) No later than January 30, 2019, any criminal justice entity conducting eyewitness identifications shall either adopt the LSEMI model policy or draft its own policy that minimally comports to key best practices as outlined in this Article.

(2) Each criminal justice entity that administers eyewitness identification procedures shall provide a copy of its written policies to the Louisiana Commission on Law Enforcement and Administration of Criminal Justice no later than March 1, 2019.

B. For any criminal justice entity that elects to draft its own policy on eyewitness identification procedures, these policies shall:

(1) Be based on all of the following:

(a) Credible field, academic, or laboratory research on eyewitness memory.

(b) Relevant policies, guidelines, and best practices designed to reduce erroneous eyewitness identifications and to enhance the reliability and objectivity of eyewitness identifications.

(c) Other relevant information as appropriate.

(2) Include the following information regarding evidence-based practices:

(a) Procedures for selecting photograph and live lineup filler photographs or participants to ensure that the photographs or participants:

(i) Are consistent in appearance with the description of the alleged perpetrator.

(ii) Do not make the suspect noticeably stand out.

(b) Instructions given to a witness before conducting a photograph or live lineup identification procedure shall include a statement that the person who committed the offense may or may not be present in the procedure.

(c) Procedures for documenting and preserving the results of a photograph or live lineup identification procedure, including the documentation of witness statements, regardless of the outcome of the procedure.

(d) Procedures for administering a photograph or live lineup identification procedure to an illiterate person or a person with limited English language proficiency.

(e) For a live lineup identification procedure, if practicable, procedures for assigning an administrator who is unaware of which member of the live lineup is the suspect in the case or alternative procedures designed to prevent opportunities to influence the witness.

(f) For a photograph identification procedure, procedures for assigning an administrator who is capable of administering a photograph array in a blind manner or in a blinded manner consistent with other proven or supported best practices designed to prevent opportunities to influence the witness.

(g) Any other procedures or best practices supported by credible research or commonly accepted as a means to reduce erroneous eyewitness identifications and to enhance the objectivity and reliability of eyewitness identifications.

(3) Provide that a witness who makes an identification based on a photograph or live lineup identification procedure be asked immediately after the procedure to state, in the witness's own words, how confident the witness is in making the identification. A law enforcement agency shall document in accordance with Subsubparagraph (2)(c) of this Paragraph any statement made under this Subparagraph.

C. Not later than December thirty-first of each odd-numbered year, the institute shall review the model policy and training materials adopted under this Article and shall modify the policy and materials as appropriate while maintaining the requirements outlined in Paragraph B of this Article.

D. Not later than December thirty-first of each even-numbered year, each law enforcement agency shall review its policy adopted under this Article and shall modify that policy as appropriate while maintaining the requirements outlined in Paragraph B of this Article.

E. Failure to conduct a photograph or live lineup identification procedure in substantial compliance with the model policy or any other policy adopted under this Article shall not bar the admission of eyewitness identification testimony.

F. A video record of identification procedures shall be made or, if a video record is not practicable, an audio record shall be made. If neither a video nor audio record are practicable, the reasons shall be documented in writing, and the lineup administrator shall make a full and complete written record of the lineup in accordance with Subsubparagraph (B)(2)(c) of this Article.

G. The written eyewitness identification procedures of a criminal justice entity shall be made available, in writing, to the public upon request.

H. Evidence of failure to comply with any of the provisions of this Article:

(1) May be considered by the district court in adjudicating motions to suppress an eyewitness identification.

(2) May be admissible in support of any claim of eyewitness misidentification, as long as the evidence is otherwise admissible.

Acts 2018, No. 466, §1, eff. May 23, 2018.