Bill would require suspect identification policies

Law enforcement agencies would be required to develop a written policy on suspect identification of eye witnesses under a bill considered by the Judiciary Committee Jan. 21.

LB846, introduced by Lincoln Sen. Patty Pansing Brooks, would require each agency to develop a written policy and submit a copy to the Nebraska Commission on Law Enforcement and Criminal Justice.

Pansing Brooks said the case of a Texas man wrongly convicted of rape, who died in jail at 39 and was posthumously exonerated through DNA evidence, proves the necessity of uniform suspect identification practices.

“These suggested best practices are as basic and fundamental to a system of justice as I can legally imagine,” she said. “Let’s not wait for something to happen in Nebraska before we require all law enforcement to use [best practices].”

Each agency would be required to follow best practices developed by the National Research Council, International Association of Chiefs of Police and the American Bar Association. These would include requiring that the officer administering the lineup:
• not be familiar with the potential suspect;
• not use non-suspects to make the potential suspect noticeably stand out;
• not see suspect photos while they are viewed by an eyewitness;
• instruct an eyewitness that the potential suspect may not be included in the lineup or photos; and
• document an eyewitness’ identification—including his or her level of certainty—of a potential suspect in the words of the eyewitness.

Michelle Feldman, state policy advocate for the Innocence Project, supported the bill, saying it would improve public safety.

“Eyewitness misidentification is a leading factor contributing to wrongful convictions. When an innocent person is convicted, the real perpetrator can be out hurting others,” she said.

Wrongfully convicted of rape and murder in Maryland, Kirk Bloodsworth spent nine years on death row before being exonerated through DNA evidence in 1993. He also spoke in support of LB846.

“Even though there was no physical evidence tying me to the crime, I was found guilty and sentenced to death. [Misidentification] cost me my freedom and it almost cost me my life,” he said. “[LB846] would ensure what happened to me doesn’t happen to other innocent people.”

The bill would require the Nebraska Commission on Law Enforcement and Criminal Justice to develop a suggested written policy model including best practices. No law enforcement agency would be required to adopt the policy unless it has failed to develop its own.

Policies must be created and reported to the commission before Jan. 1, 2017.

Nebraska Assistant Attorney General John Freudenberg opposed the bill.

“The majority of Nebraska law enforcement agencies already have these types of policies in place. In fact, we believe the vast majority would have adopted a policy by the end of the year if encouraged to do so,” he said. “Such best practice standards should not be included in legislation because they evolve over time.”

The committee took no immediate action on the bill.