CERTIFICATION OF ENROLLMENT

SUBSTITUTE SENATE BILL 5714

66TH LEGISLATURE

2019 REGULAR SESSION

SUBSTITUTE SENATE BILL 5714

AS AMENDED BY THE HOUSE

BySenate Law & Justice (originally sponsored by Senators Dhingra, Padden, Salomon, Kuderer, Billig, Darneille, Das, and Hasegawa)

AN ACT Relating to the reliability of evidence in criminal proceedings; adding a new chapter to Title 10 RCW; and providing expiration dates.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1. INTENT.The legislature recognizes that prosecuting attorneys, law enforcement, and society at large strive for a criminal justice system that minimizes the risk actually innocent people will be convicted. The legislature further recognizes that mistaken identification by witnesses to crime and false testimony by informants who are given benefits in exchange for their testimony have contributed to the conviction of the innocent in Washington state. Through the development of best practices related to the collection of eyewitness evidence and the use of informant witnesses, and the adoption of model guidelines to implement those practices, the legislature aims to improve the quality of such evidence and reduce the risk of wrongful conviction related to these contributing factors.

NEW SECTION.  Sec. 2. EYEWITNESS EVIDENCE WORK GROUP.(1) The Washington association of sheriffs and police chiefs shall administer a work group for the purpose of maximizing the reliability of eyewitness evidence collected during criminal investigations.

(2) The president of the senate and the speaker of the house of representatives shall jointly appoint the members of the work group to include the following:

(a) One member representing the senate;

(b) One member representing the house of representatives;

(c) The chief of the Washington state patrol or the chief's designee;

(d) One member representing the criminal justice training commission with expertise in developing law enforcement training curricula;

(e) The executive director of the Washington association of sheriffs and police chiefs or the executive director's designee;

(f) Two members representing the Washington association of prosecuting attorneys, each from a diverse geographical location;

(g) One member representing the Washington defender association;

(h) One member representing the Washington association of criminal defense lawyers;

(i) One member representing the Washington innocence project; and

(j) One member from the scientific community with expertise in eyewitness memory.

(3) The duties of the work group include, but are not limited to:

(a) Developing model guidelines for the collection of eyewitness evidence consistent with the model policies adopted in 2015 by the Washington association of sheriffs and police chiefs and the Washington association of prosecuting attorneys. The model guidelines must also: Be based on credible field, academic, or laboratory research on eyewitness memory; be designed to reduce erroneous eyewitness identifications and enhance the reliability and objectivity of eyewitness identifications; and include standards for blind administration of the identification procedure, filler selection, instructions to the witness, and documenting a statement of witness confidence immediately following any positive identification;

(b) Designing law enforcement training for the collection and documentation of eyewitness evidence based on the model guidelines developed pursuant to this subsection; and

(c) In consultation with the University of Washington Tacoma and the criminal justice training commission, designing a pilot project for implementing and evaluating the effectiveness of the training curriculum developed pursuant to this subsection.

(4) The work group shall hold its initial meeting no later than July 31, 2019, and complete the model guidelines, training curriculum, and proposal for the pilot project no later than November 30, 2019.

(5) The work group shall prepare and submit to the appropriate committees of the legislature a report, including a summary of its activities, the model guidelines, training curriculum, proposal for the pilot project, and other related recommendations by November 30, 2019.

(6) The work group shall function within existing resources.

(7) This section expires December 31, 2022.

NEW SECTION.  Sec. 3. INFORMANT RELIABILITY WORK GROUP.(1) For the purposes of this section, "informant" means any person who: (a) Was previously unconnected with the criminal case as either a witness or a codefendant; (b) claims to have relevant information about the crime; (c) is currently charged with a crime or is facing potential criminal charges or is in custody; and (d) at any time receives consideration in exchange for providing the information or testimony.

(2) The University of Washington school of law, in consultation with the Washington association of prosecuting attorneys and Washington innocence project, shall administer a work group on the reliability of informant testimony. The primary purposes of the work group are to adopt model guidelines and develop a training curriculum based on those guidelines to assist prosecuting attorneys in evaluating the reliability of information or testimony offered by an informant before it is used in connection with any criminal proceeding and in determining adequate preliminary disclosures to the defense.

(3) The president of the senate and the speaker of the house of representatives shall jointly appoint the members of the work group to include the following:

(a) One member representing the senate;

(b) One member representing the house of representatives;

(c) The executive director of the Washington association of sheriffs and police chiefs or the executive director's designee;

(d) Two members representing the Washington association of prosecuting attorneys, each from a diverse geographical location;

(e) One member representing the Washington defender association;

(f) One member representing the Washington association of criminal defense lawyers;

(g) One member representing the Washington innocence project; and

(h) One member of the board of the western states information network.

(4) The duties of the work group include, but are not limited to:

(a) Developing model guidelines for prosecutors to determine whether to use an informant in a criminal proceeding;

(b) Designing and implementing statewide training for prosecutors and defense counsel based on the model guidelines; and

(c) Collecting local protocols required under section 4 of this act.

(5) The work group shall hold its initial meeting no later than July 31, 2019, and complete the model guidelines and training curriculum no later than November 30, 2019.

(6) The work group shall coordinate with the Washington association of prosecuting attorneys, Washington defender association, and Washington association of criminal defense lawyers to make specialized training based on the training curriculum developed pursuant to subsection (4) of this section available to prosecuting attorneys and criminal defense attorneys.

(7) The work group shall prepare and submit to the appropriate committees of the legislature a report including the model guidelines, the training curriculum, and a summary of its work by November 30, 2019.

(8) The work group shall function within existing resources.

(9) This section expires December 31, 2022.

NEW SECTION.  Sec. 4. LOCAL PROTOCOLS FOR THE USE OF INFORMANTS.(1) No later than December 31, 2020, each county prosecuting attorney shall:

(a) Adopt and implement a written local protocol for the use of informants consistent with the model guidelines developed pursuant to section 3 of this act, and submit a copy of the local protocol to the work group established in section 3 of this act; and

(b) Establish and maintain a central record of informants used in the course of criminal proceedings as well as formal offers to give testimony or other information. This record is the confidential work product of the office of the prosecuting attorney.

(2) If a county prosecutor adopts the model guidelines developed by the work group established under section 3 of this act, it has met the requirements of subsection (1)(a) of this section.

(3) If a county prosecutor chooses to adopt its own local protocol, the protocol must articulate adequate preliminary disclosures to the defense and include a list of procedures for prosecuting attorneys to follow when evaluating the reliability of an informant that includes:

(a) The complete criminal history of the informant including pending criminal charges;

(b) Any consideration provided in exchange for the information or testimony;

(c) Whether the informant's information or testimony was modified or recanted;

(d) The number of times the informant has previously provided information or testimony in exchange for consideration; and

(e) The kind and quality of other evidence corroborating the informant's information or testimony.

(4) Nothing in this section diminishes federal constitutional disclosure obligations to criminal defendants or any related obligations under Washington case law, statutes, or court rules.

(5) For the purposes of this section, "informant" means any person who: (a) Was previously unconnected with the criminal case as either a witness or a codefendant; (b) claims to have relevant information about the crime; (c) is currently charged with a crime or is facing potential criminal charges or is in custody; and (d) at any time receives consideration in exchange for providing the information or testimony.

NEW SECTION.  Sec. 5. JURY INSTRUCTION FOR INFORMANT TESTIMONY.(1) If the testimony of an informant is admitted in a criminal proceeding, the prosecuting attorney or defendant may request a jury instruction on exercising caution in evaluating the credibility of an informant. Except when otherwise determined by the court, the instruction should be substantially similar to the following form:

"The testimony of an informant, given on behalf of the [State] [City] [County] in exchange for a legal advantage or other benefit, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You, the jury, must weigh the credibility of his or her testimony. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth."

(2) For the purposes of this section, "informant" has the same meaning as in section 4 of this act.

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