Bill Text: IL HB2763 | 2019-2020 | 101st General Assembly | Engrossed

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Bill Title: Amends the Code of Criminal Procedure of 1963. Provides that a lineup shall be conducted using an independent administrator, unless it is not practical or if the eyewitness consents to having the lineup video recorded (in the introduced bill, the lineup may be video recorded if the eyewitness consents).

Spectrum: Moderate Partisan Bill (Democrat 9-1)

Status: (Engrossed - Dead) 2021-01-05 - Rule 2-10 Committee/3rd Reading Deadline Established As January 13, 2021 [HB2763 Detail]

Download: Illinois-2019-HB2763-Engrossed.html

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

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

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

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by the eyewitness, unless the eyewitness refuses to the
recording of the lineup, and that if a recording is
made it will be of the persons in the lineup and the
eyewitness;
(B) the perpetrator may or may not be presented in
the lineup;
(C) if an independent administrator is conducting
the lineup, the independent administrator does not
know the suspected perpetrator's identity or if the
administrator conducting the lineup is not an
independent administrator, the eyewitness should not
assume that the lineup administrator knows which
person in the lineup is the suspect;
(D) the eyewitness should not feel compelled to
make an identification;
(E) it is as important to exclude innocent persons
as it is to identify a perpetrator; and
(F) the investigation will continue whether or not
an identification is made.
(2) The eyewitness shall acknowledge in writing the
receipt of the instructions required under this subsection
and, if applicable, the refusal to be recorded. If the
eyewitness refuses to sign the acknowledgement, the lineup
administrator shall note the refusal of the eyewitness to
sign the acknowledgement and shall also sign the
acknowledgement.

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

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

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

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

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

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