Florida Senate - 2010 SB 2522
By Senator Joyner
18-01905B-10 20102522__
1 A bill to be entitled
2 An act relating to evidence of crimes; providing a
3 short title; amending s. 925.11, F.S.; providing
4 definitions; providing that governmental entities are
5 required to maintain physical evidence for potential
6 DNA testing only for serious crimes; providing for the
7 preservation of evidence in custody of governmental
8 entities on the effective date of the act; providing
9 that only the portion of a piece of evidence that is
10 likely to contain biological evidence must be retained
11 and other portions of that piece of evidence may be
12 disposed of when the physical evidence is of such a
13 size, bulk, or physical character as to render
14 retention impracticable; providing that upon written
15 request by the defendant in a case of serious crime, a
16 governmental entity shall prepare an inventory of
17 biological evidence that has been preserved; providing
18 for creation of an Eyewitness Identification Task
19 Force; providing definitions; providing for
20 membership; requiring the task force to develop
21 recommended guidelines for policies, procedures, and
22 training with respect to the collection and handling
23 of eyewitness evidence in criminal investigations;
24 requiring the task force to consider specified
25 policies and procedures; providing that the guidelines
26 developed by the task force shall serve as the basis
27 for a training program through the Criminal Justice
28 Standards and Training Commission; requiring the
29 Department of Law Enforcement to formulate a training
30 curriculum for new and existing law enforcement
31 officers using recommended guidelines by a specified
32 date; requiring a report by a specified date;
33 providing for minority reports; requiring that the
34 report be posted on the Internet and distributed to
35 specified parties; providing for termination of the
36 task force and expiration of its authorizing
37 provisions; providing an effective date.
38
39 Be It Enacted by the Legislature of the State of Florida:
40
41 Section 1. This act may be entitled “The Enhancing Crime
42 Solving Potential and Reliability of the Criminal Justice System
43 Act.”
44 Section 2. Section 925.11, Florida Statutes, is amended to
45 read:
46 925.11 Postsentencing DNA testing.—
47 (1) DEFINITIONS.—As used in this section, the term:
48 (a) “Biological evidence” means the contents of a sexual
49 assault examination kit and any item that contains blood, semen,
50 hair, saliva, skin tissue, fingernail scrapings, bone, bodily
51 fluids, or other identifiable biological material that was
52 collected as part of an investigation of a serious crime or that
53 may reasonably be used to incriminate or exculpate any person
54 for a serious crime. This includes all such material regardless
55 of whether that material is catalogued separately, such as on a
56 slide or swab or in a test tube, or is present on other
57 evidence, including, but not limited to, clothing, ligatures,
58 bedding, or other household material such as drinking cups,
59 cigarettes, envelopes, or like items.
60 (b) “DNA” means deoxyribonucleic acid.
61 (c) “Governmental entity” refers to any governmental or
62 public entity within the state, including any private entity
63 that performs functions described in this paragraph, and any
64 official or employee of such an entity, including, but not
65 limited to, any law enforcement agency, prosecutor’s office,
66 court, crime laboratory, or other entity or individual charged
67 with the collection, storage, or retrieval of biological
68 evidence.
69 (d) “Serious crime” means any felony violation contained in
70 any of the following provisions:
71 1. Chapter 782, entitled “Homicide.”
72 2. Section 784.021, entitled “Aggravated Assault.”
73 3. Section 784.041, entitled “Felony battery; domestic
74 battery by strangulation.”
75 4. Section 784.045, entitled “Aggravated Battery.”
76 5. Section 787.01, entitled “Kidnapping; kidnapping of
77 child under age 13, aggravating circumstances.”
78 6. Section 787.02, entitled “False imprisonment; false
79 imprisonment of child under age 13, aggravating circumstances.”
80 7. Section 794.011, entitled “Sexual battery.”
81 8. Section 800.04, entitled “Lewd or lascivious offenses
82 committed upon or in the presence of persons less than 16 years
83 of age.”
84 9. Section 806.01, entitled “Arson.”
85 10. Section 806.031, entitled “Arson resulting in injury to
86 another; penalty.”
87 11. Section 810.02, entitled “Burglary.”
88 12. Section 812.13, entitled “Robbery.”
89 13. Section 812.131, entitled “Robbery by sudden
90 snatching.”
91 14. Section 812.133, entitled “Carjacking.”
92 15. Section 812.135, entitled “Home-invasion robbery.”
93 (2)(1) PETITION FOR EXAMINATION.—
94 (a)1. A person who has been tried and found guilty of
95 committing a felony and has been sentenced by a court
96 established by the laws of this state may petition that court to
97 order the examination of physical evidence collected at the time
98 of the investigation of the crime for which he or she has been
99 sentenced that may contain DNA (deoxyribonucleic acid) and that
100 would exonerate that person or mitigate the sentence that person
101 received.
102 2. A person who has entered a plea of guilty or nolo
103 contendere to a felony prior to July 1, 2006, and has been
104 sentenced by a court established by the laws of this state may
105 petition that court to order the examination of physical
106 evidence collected at the time of the investigation of the crime
107 for which he or she has been sentenced that may contain DNA
108 (deoxyribonucleic acid) and that would exonerate that person.
109 (b) A petition for postsentencing DNA testing under
110 paragraph (a) may be filed or considered at any time following
111 the date that the judgment and sentence in the case becomes
112 final.
113 (3)(2) METHOD FOR SEEKING POSTSENTENCING DNA TESTING.—
114 (a) The petition for postsentencing DNA testing must be
115 made under oath by the sentenced defendant and must include the
116 following:
117 1. A statement of the facts relied on in support of the
118 petition, including a description of the physical evidence
119 containing DNA to be tested and, if known, the present location
120 or the last known location of the evidence and how it was
121 originally obtained;
122 2. A statement that the evidence was not previously tested
123 for DNA or a statement that the results of any previous DNA
124 testing were inconclusive and that subsequent scientific
125 developments in DNA testing techniques would likely produce a
126 definitive result establishing that the petitioner is not the
127 person who committed the crime;
128 3. A statement that the sentenced defendant is innocent and
129 how the DNA testing requested by the petition will exonerate the
130 defendant of the crime for which the defendant was sentenced or
131 will mitigate the sentence received by the defendant for that
132 crime;
133 4. A statement that identification of the defendant is a
134 genuinely disputed issue in the case, and why it is an issue;
135 5. Any other facts relevant to the petition; and
136 6. A certificate that a copy of the petition has been
137 served on the prosecuting authority.
138 (b) Upon receiving the petition, the clerk of the court
139 shall file it and deliver the court file to the assigned judge.
140 (c) The court shall review the petition and deny it if it
141 is insufficient. If the petition is sufficient, the prosecuting
142 authority shall be ordered to respond to the petition within 30
143 days.
144 (d) Upon receiving the response of the prosecuting
145 authority, the court shall review the response and enter an
146 order on the merits of the petition or set the petition for
147 hearing.
148 (e) Counsel may be appointed to assist the sentenced
149 defendant if the petition proceeds to a hearing and if the court
150 determines that the assistance of counsel is necessary and makes
151 the requisite finding of indigency.
152 (f) The court shall make the following findings when ruling
153 on the petition:
154 1. Whether the sentenced defendant has shown that the
155 physical evidence that may contain DNA still exists;
156 2. Whether the results of DNA testing of that physical
157 evidence would be admissible at trial and whether there exists
158 reliable proof to establish that the evidence has not been
159 materially altered and would be admissible at a future hearing;
160 and
161 3. Whether there is a reasonable probability that the
162 sentenced defendant would have been acquitted or would have
163 received a lesser sentence if the DNA evidence had been admitted
164 at trial.
165 (g) If the court orders DNA testing of the physical
166 evidence, the cost of such testing may be assessed against the
167 sentenced defendant unless he or she is indigent. If the
168 sentenced defendant is indigent, the state shall bear the cost
169 of the DNA testing ordered by the court.
170 (h) Any DNA testing ordered by the court shall be carried
171 out by the Department of Law Enforcement or its designee, as
172 provided in s. 943.3251.
173 (i) The results of the DNA testing ordered by the court
174 shall be provided to the court, the sentenced defendant, and the
175 prosecuting authority.
176 (4)(3) RIGHT TO APPEAL; REHEARING.—
177 (a) An appeal from the court’s order on the petition for
178 postsentencing DNA testing may be taken by any adversely
179 affected party.
180 (b) An order denying relief shall include a statement that
181 the sentenced defendant has the right to appeal within 30 days
182 after the order denying relief is entered.
183 (c) The sentenced defendant may file a motion for rehearing
184 of any order denying relief within 15 days after service of the
185 order denying relief. The time for filing an appeal shall be
186 tolled until an order on the motion for rehearing has been
187 entered.
188 (d) The clerk of the court shall serve on all parties a
189 copy of any order rendered with a certificate of service,
190 including the date of service.
191 (5)(4) PRESERVATION OF EVIDENCE.—
192 (a) Governmental entities shall preserve physical evidence
193 potentially containing biological evidence on which a
194 postsentencing testing of DNA may be requested if that evidence
195 is secured in relation to an investigation or prosecution of:
196 1. A serious crime for the period of time that the serious
197 crime remains unsolved; or
198 2. A serious crime for the period of time that an
199 individual is incarcerated based on a conviction for that
200 serious crime and is in the custody of an evidence-holding
201 agency in this state on July 1, 2010 Governmental entities that
202 may be in possession of any physical evidence in the case,
203 including, but not limited to, any investigating law enforcement
204 agency, the clerk of the court, the prosecuting authority, or
205 the Department of Law Enforcement shall maintain any physical
206 evidence collected at the time of the crime for which a
207 postsentencing testing of DNA may be requested.
208 (b) In a case in which the death penalty is imposed, the
209 evidence shall be maintained for 60 days after execution of the
210 sentence. In all other cases, a governmental entity may dispose
211 of the physical evidence if:
212 1. The term of the sentence imposed in the case has expired
213 and no other provision of law or rule requires that the physical
214 evidence be preserved or retained; or
215 2. The physical evidence is of such a size, bulk, or
216 physical character as to render retention impracticable. When
217 such retention is impracticable, the governmental entity shall
218 remove and preserve portions of the material evidence likely to
219 contain biological evidence related to the serious crime in a
220 quantity sufficient to permit future DNA testing before
221 returning or disposing of the physical evidence.
222 (c) Upon written request by the defendant in a case of
223 serious crime, a governmental entity shall prepare an inventory
224 of biological evidence that has been preserved in connection
225 with that case.
226 Section 3. Eyewitness Identification Task Force.—
227 (1) As used in this section, the term:
228 (a) “Administrator” means the person conducting a photo or
229 live lineup.
230 (b) “Blind” means the administrator does not know the
231 identity of the suspect.
232 (c) “Blinded” means the administrator may know who the
233 suspect is, but does not know which lineup member is being
234 viewed by the eyewitness.
235 (d) “Eyewitness” means a person who observes another person
236 at or near the scene of an offense.
237 (e) “Filler” means either a person or a photograph of a
238 person who is not suspected of an offense and is included in an
239 identification procedure.
240 (f) “Live lineup” means an identification procedure in
241 which a group of persons, including the suspected perpetrator of
242 an offense and persons who are fillers, are displayed to an
243 eyewitness for the purpose of determining whether the eyewitness
244 identifies the suspect as the perpetrator.
245 (g) “Photo lineup” means an identification procedure in
246 which an array of photographs, including a photograph of the
247 suspected perpetrator of an offense and additional photographs
248 of persons who are fillers, are displayed to an eyewitness
249 either in hard copy form or via digital imaging for the purpose
250 of determining whether the eyewitness identifies the suspect as
251 the perpetrator.
252 (h) “Showup” means an identification procedure in which an
253 eyewitness is presented with a single suspect for the purpose of
254 determining whether the eyewitness identifies this individual as
255 the perpetrator.
256 (2) An Eyewitness Identification Task Force shall be
257 convened by the executive director of the Department of Law
258 Enforcement and is composed of 10 members as follows:
259 (a) The Florida Police Chiefs Association shall appoint two
260 members:
261 1. One of whom must be from a small law enforcement agency;
262 and
263 2. One of whom must be from a large law enforcement agency
264 accredited by the Commission on Accreditation for Law
265 Enforcement Agencies.
266 (b) The Florida Sheriffs Association shall appoint one
267 member.
268 (c) The Attorney General shall appoint one member, who must
269 be an attorney who represents the state in the prosecution of
270 felonies and is a member of the Florida Prosecuting Attorneys
271 Association.
272 (d) The executive director of the Department of Law
273 Enforcement shall appoint one member who is actively involved in
274 the development of the department’s curricula.
275 (e) The Chief Justice of the Supreme Court shall appoint
276 one member, who must be a member of the judiciary.
277 (f) The Chancellor of the State University System shall
278 appoint two members:
279 1. One of whom must be a law professor; and
280 2. One of whom must be a professor of psychology with
281 experience in research related to memory.
282 (g) The Florida Public Defender Association shall appoint
283 one member, who must be a criminal defense lawyer.
284 (h) The executive director of the Innocence Project of
285 Florida or his or her designee shall be a member.
286 (3) The task force members, in consultation with eyewitness
287 identification practitioners and experts, shall develop
288 recommended guidelines for policies, procedures, and training
289 with respect to the collection and handling of eyewitness
290 evidence in criminal investigations by law enforcement agencies
291 in the state that are shown by reliable evidence to enhance the
292 accuracy of eyewitness identification.
293 (4) The task force shall consider the following policies
294 and practices to enhance the accuracy and reliability of
295 eyewitness evidence, including, without limitation:
296 (a) Employing a blind or blinded administrator in the
297 administration of live and photo lineups.
298 (b) Issuing specific instructions to the eyewitness before
299 and during the live or photo lineup or showup, which may
300 include:
301 1. That the perpetrator may or may not be among the persons
302 in the identification procedure or, in the case of a showup, may
303 or may not be the person that is presented to the eyewitness.
304 2. That the administrator does not know who the perpetrator
305 is.
306 3. That the eyewitness should not feel compelled to make an
307 identification.
308 4. That the investigation will continue whether or not an
309 identification is made.
310 5. That the procedure requires the administrator to ask the
311 eyewitness to state, in his or her own words, how certain he or
312 she is of any identification.
313 6. That the eyewitness not discuss the identification
314 procedure or its results with other eyewitnesses involved in the
315 case or contact the media.
316 (c) In a photo lineup, ensuring that the photograph of the
317 suspect is contemporary and resembles the suspect’s appearance
318 at the time of the offense.
319 (d) Using four or more fillers in live lineups and five or
320 more fillers in photo lineups and ensuring that those fillers
321 generally resemble the eyewitness’s description of the
322 perpetrator.
323 (e) Using only one suspect in any live or photo lineup and
324 ensuring that the suspect does not unduly stand out from the
325 fillers.
326 (f) Using different fillers in successive lineups
327 administered for the same eyewitness when new suspects are
328 introduced.
329 (g) Presenting separate photo and live lineups when there
330 are multiple eyewitnesses, while ensuring the same suspect is
331 placed in a different position for each identification
332 procedure.
333 (h) Taking measures to avoid communication about the
334 identity of the suspect to the eyewitness and ensuring that
335 communication among multiple eyewitnesses is prevented.
336 (i) Presenting members of photo and live lineups one at a
337 time.
338 (j) Assessing the circumstances under which a showup is
339 warranted and the attendant measures that should be undertaken
340 to prevent or reduce suggestibility.
341 (k) Determining when the administrator should record the
342 eyewitness’s statement of confidence in his or her selection in
343 the live or photo lineup or showup procedure.
344 (l) Refraining from providing any confirmatory information
345 to the eyewitness.
346 (m) Producing a video or audio recording of the photo or
347 live lineup, showup, or other procedure.
348 (5) Such guidelines shall also provide the basis for a
349 training program through the Criminal Justice Standards and
350 Training Commission, which shall devise a curriculum adopting
351 those recommended policies and procedures for law enforcement
352 agencies in the this state.
353 (6) The task force shall establish guidelines for
354 eyewitness identification procedures pursuant to subsections
355 (1)-(5) by October 1, 2011.
356 (7) The Department of Law Enforcement shall formulate a
357 training curriculum for new and existing law enforcement
358 officers that comprises the recommended guidelines established
359 pursuant to subsections (1)-(5) by June 30, 2012.
360 (8) The task force shall submit a report on the guidelines
361 developed and recommendations concerning their use by October 1,
362 2011. Minority reports may also be issued. These reports shall
363 be posted on the state’s official website and presented to the
364 Governor, the Chief Justice of the Supreme Court, the President
365 of the Senate, the Speaker of the House of Representatives, and
366 the standing committees of the Legislature having oversight
367 jurisdiction of matters relating to criminal law and procedures.
368 The task force shall terminate on the date that it submits such
369 report or October 1, 2011, whichever is earlier, and this
370 section expires on that date.
371 Section 4. This act shall take effect July 1, 2010.