Eyewitness Identification Laws and Polices in Texas


In 2011, the Texas legislature took a special interest in reducing wrongful convictions that stem from mistaken eyewitness identifications. The law, HB 215, which stemmed from this interest, is now codified in 38.20 of the Texas Code of Criminal Procedure (CCP).

Under CCP 38.20, law enforcement agencies are required to have a written policy regarding eyewitness identifications, which include the administration of photograph and live lineups.

Although the agencies may adopt either the policy set out by the Bill Blackwood Law Enforcement Management Institute of Texas or write one of their own, there is a standard defined in CCP 38.20 that must be met.

These standards pertain to the basis and theory behind the policy, the possible suspects that are used in a lineup and photo identifications, and the administration and documentation of the identification procedure.

As set out in 38.20 Sec. 3 (c), the policy must:

1.  Be based on:

(a) credible filed, 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; and

(c) other relevant information as appropriate 

2. Address the following topics:

(a) the selection of filler photographs or participants;

(b) instructions given to a witness before conducting a lineup identification procedure;

(c) documentation and preservation of 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 the identification procedure to an illiterate person or a person with limited English language proficiency;

(e) for a live lineup, 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 manner consistent with other proven or supported best practices designed to prevent opportunities to influence the witness; and

(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.

A policy that meets this standard is the policy set out by the Bill Blackwood Law Enforcement Management Institute of Texas. Key aspects to this policy are blind or blinded administration, as explained in (F) and (E) above; showing photographs sequentially, one after another, rather than showing all photos at the same time; not allowing the witness to view more than one photo at one time; preferring documentation by video; avoiding show-ups whenever possible; bringing the witness to the suspect in a show-up; using a show-up with only one witness; and having a show-up only within 2 hours of the crime.

It should be noted that although this policy does meet the standard laid out in CCP 38.20, other law enforcement agencies can deviate from this policy and still be in compliance with the standard.

If you’ve been charged with a criminal offense in the Houston area, contact the Texas Board Certified criminal justice lawyers of Madrid Law, PLLC as soon as possible for the best chance to obtain favorable results from the court of law as it relates to your particular situation.

0