State Legislative Affairs Update

State Legislative Affairs Update

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Crime Lab Oversight

Maryland: Governor Signs Groundbreaking Crime Lab Regulation Law

Maryland is on the cutting edge of crime lab oversight after Gov. Martin O’Malley signed SB 351 on April 24. The bill requires crime labs to be regulated by the same agency that regulates health care facilities and clinical labs in the state. The legislation requires state and local crime labs to be licensed by the Department of Health and Mental Hygiene and directs the department to develop regulations for forensic laboratories, qualifications for lab employees, and proficiency testing programs. The secretary of the department will be able to suspend or revoke licenses, and regulators will be allowed to conduct unannounced inspections and take corrective actions to fix or shut down labs. The bill also establishes whistleblower protections for lab employees who witness misconduct or violations of regulations.

The secretary of the Department of Health and Mental Hygiene will be advised on the regulations by a Forensic Laboratory Advisory Committee, eight members of which will be appointed by the governor. The regulations and licensing standards must be implemented by December 31, 2010.

Death Penalty

Georgia: Bill to Allow Death Sentences From Non-Unanimous Juries Rejected

Prosecutors in Georgia are concerned that it isn’t easy enough to get a death sentence in their state, so they took their case to the legislature this year. Their solution? Allow non-unanimous juries to sentence a defendant to death. HB 185 would have allowed a judge to sentence a defendant to death if “at least 10 of the jurors cast their vote for a sentence of death.” The bill passed the House on March 20, but ran into problems in the Senate Judiciary Committee. According to the Albany (Ga.) Herald, the committee “rejected the measure on a technicality, voting it down when its House sponsor wasn’t in the room.” (“Legislative Work Left to Be Done,” Albany Herald, April 29, 2007) Sandra Michaels, lobbyist for the Georgia Association of Criminal Defense Lawyers, says the bill didn’t have enough votes even if the sponsor made it to the hearing. Michaels believes the bill will likely be resurrected next year.

Eyewitness Identification Reform

Maryland: Eyewitness ID Reform Law Enacted

For the third straight year an eyewitness identification reform bill was introduced in the Maryland General Assembly, but unlike years past, this time the legislature passed the bill and sent it to the governor’s desk. HB 103 is fairly modest in its reforms: By December 1, 2007, each law enforcement agency in the state must adopt written eyewitness identification policies “that comply with the U.S. Department of Justice standards on obtaining accurate eyewitness identification.” Before the beginning of 2008, each department must file its written policies with the Department of State Police. The Department must then compile the written procedures and open them up to public inspection. The governor signed the bill on May 17.

West Virginia: Eyewitness ID Reform Bill Signed

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On April 3, Gov. Joe Manchin III signed SB 82, the Eyewitness Identification Act. The law implements three reforms: (1) instructions for eyewitnesses; (2) written records of lineups; and (3) a task force to develop statewide procedures based on best practices.

Before a lineup is presented, instructions must be given to an eyewitness, telling him or her that the perpetrator may or may not be in the lineup, that the eyewitness is not required to make an identification, and that it is as important to exclude innocent persons as it is to identify the perpetrator. A written record of the lineup must be made by a law enforcement officer, including the date, time, and location of the lineup. Other required information includes the names of all persons in the lineup; whether it was a photo or live lineup; number of persons in the lineup; and whether the lineup administrator knew which person in the lineup was a suspect. A confidence statement from the witness must also be recorded, detailing the words used by the eyewitness describing the certainty of the identification. A video of the lineup procedure may be included as well.

The task force created by the legislation will include members from the defense, prosecution, judiciary, and law enforcement communities, as well as experts in forensic science. The task force is charged with developing lineup procedures that will increase the accuracy of eyewitness identifications, and it is supposed to consider the use of “blind” lineup administrators, sequential versus simultaneous lineup presentations, recording lineup procedures, training issues, and other relevant topics. By December 15, 2008, the task force must present its recommended guidelines to the legislature.

Recording Interrogations

Iowa: Police to Begin Recording Custodial Interrogations Statewide

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On December 1, 2006, the Iowa Supreme Court issued its opinion in State v. Hajtic __ N.W.2d__(Sup. Ct. No. 03-1481), which, in part, encouraged the police to begin videotaping custodial interrogations.

The case involved a juvenile of Bosnian descent, accused and later convicted of burglary and robbery. On appeal, the defendant claimed that he did not knowingly, intelligently, and voluntarily waive his Miranda rights and confess to the crime. According to the justices, however, the videotape of the defendant’s questioning showed otherwise, and they noted how useful the tape was in making their ruling. The decision includes a discussion of cases from Alaska and Minnesota which required electronic recording of custodial interrogations, as well as the American Bar Association’s endorsement of the policy. While the decision did not include a requirement to record, the justices did write, “We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so.”

Shortly after the decision, the Iowa County Attorneys Association sent an e-mail to all county attorneys, noting, “While the court says that it is ‘encouraging’ the practice of electronic recording, the Attorney General’s office believes that this decision should be read as essentially mandating the practice from this time forward.”