SB 368 — An Act amending Title 44 (Law and Justice) of the Pennsylvania Consolidated Statutes, providing for investigations; and imposing duties on the Pennsylvania State Police and the Municipal Police Officers' Education and Training Commission.

PRINTER'S NO.   316

                     THE GENERAL ASSEMBLY OF PENNSYLVANIA



                        SENATE BILL
                        No. 368
                                                   Session of
                                                     2025

     INTRODUCED BY HUGHES, KEARNEY, HAYWOOD, SCHWANK, COSTA AND KANE,
        MARCH 6, 2025

     REFERRED TO LAW AND JUSTICE, MARCH 6, 2025


                                      AN ACT
 1   Amending Title 44 (Law and Justice) of the Pennsylvania
 2      Consolidated Statutes, providing for investigations; and
 3      imposing duties on the Pennsylvania State Police and the
 4      Municipal Police Officers' Education and Training Commission.
 5      The General Assembly of the Commonwealth of Pennsylvania
 6   hereby enacts as follows:
 7      Section 1.    Title 44 of the Pennsylvania Consolidated
 8   Statutes is amended by adding a chapter to read:
 9                                  CHAPTER 83
10                                INVESTIGATIONS
11   Subchapter
12      A.   Eyewitness Identifications
13      B.   (Reserved)
14                                 SUBCHAPTER A
15                          EYEWITNESS IDENTIFICATIONS
16   Sec.
17   8301.   Scope of subchapter.
18   8302.   Legislative purpose.
19   8303.   Definitions.
 1   8304.   Eyewitness identification procedures.
 2   8305.   Jury instructions.
 3   8306.   Education and training program.
 4   § 8301.    Scope of subchapter.
 5      This subchapter relates to eyewitness identification
 6   improvement.
 7   § 8302.    Legislative purpose.
 8      The purpose of this subchapter is to help solve crime,
 9   convict the guilty and protect the innocent in criminal
10   proceedings by improving procedures for eyewitness
11   identification of suspected perpetrators while ensuring that
12   police can promptly, safely and effectively investigate crimes.
13   § 8303.    Definitions.
14      The following words and phrases when used in this subchapter
15   shall have the meanings given to them in this section unless the
16   context clearly indicates otherwise:
17      "Administrator."       The individual who conducts a live lineup
18   or photo lineup.
19      "Blind lineup."     A lineup where either of the following
20   occurs:
21             (1)   For a live lineup or photo lineup, the administrator
22      does not know the identity of the suspect.
23             (2)   For a photo lineup in which the administrator knows
24      the identity of the suspect, the administrator does not know
25      which photograph the eyewitness is viewing at a given time.
26      "Eyewitness."     An individual who observes another individual
27   at or near the scene of a criminal offense.
28      "Filler."     An individual who is not suspected of an offense
29   and is included in an identification procedure.
30      "Identification procedure."       As follows:

20250SB0368PN0316                      - 2 -
 1          (1)     An investigative procedure in which a law
 2      enforcement official requests an eyewitness to attempt to
 3      identify an individual who perpetrated a criminal offense.
 4          (2)     The term includes:
 5                (i)    A live lineup.
 6                (ii)    A photo lineup.
 7                (iii)    A show-up.
 8      "Law enforcement agency."       A governmental entity whose
 9   responsibilities include enforcement of criminal laws or the
10   investigation of suspected criminal activity.
11      "Law enforcement officer."        An officer or other employee of a
12   law enforcement agency whose personal responsibilities include
13   enforcement of criminal laws or the investigation of suspected
14   criminal activity.
15      "Live lineup."      An identification procedure in which several
16   individuals, including the suspect and fillers, are displayed to
17   an eyewitness for the purpose of determining whether the
18   eyewitness identifies the suspect as the perpetrator.
19      "Photo lineup."      An identification procedure in which an
20   array of photographs, comprising a photograph of the suspect and
21   photographs of fillers, is displayed to an eyewitness either in
22   hard copy form or via computer for the purpose of determining
23   whether the eyewitness identifies the suspect as the
24   perpetrator.
25      "Show-up."      An identification procedure in which an
26   eyewitness is presented with a suspect for the purpose of
27   determining whether the eyewitness identifies the individual as
28   the perpetrator.
29      "Suspect."      The individual believed by law enforcement
30   investigators to be the possible perpetrator of the crime.

20250SB0368PN0316                       - 3 -
 1   § 8304.    Eyewitness identification procedures.
 2      (a)     Compliance.--An eyewitness identification procedure
 3   conducted by a law enforcement agency must comply with this
 4   section.
 5      (b)     Description of the perpetrator.--
 6             (1)   Except as provided under subsection (h)(1), the
 7      eyewitness's description of the perpetrator and the
 8      circumstances under which the eyewitness observed the
 9      perpetrator, in the eyewitness's own words, shall be obtained
10      and documented immediately prior to a live lineup or photo
11      lineup, unless a description was recorded or otherwise
12      documented by law enforcement personnel before the
13      commencement of the identification procedure.
14             (2)   An eyewitness description shall be preserved and
15      provided as part of discovery.
16      (c)     Blind lineup administration.--
17             (1)   Subject to the exceptions in this subsection, a
18      blind lineup shall be conducted.
19             (2)   If a lineup is not blind, the administrator shall
20      state in writing the reason that a blind lineup was not used.
21             (3)   A blind lineup shall not be required to be conducted
22      if any of the following apply:
23                   (i)    A blind lineup is not practicable under the
24             circumstances. The administrator shall state in writing
25             the reasons that a blind lineup is not practicable.
26                   (ii)    The law enforcement agency employs a single
27             lineup administrator who conducts each of its lineups,
28             counsel for the suspect is present at the lineup and the
29             identification procedure complies with subsections (d),
30             (e), (f), (g), (i) and (j).

20250SB0368PN0316                        - 4 -
 1                  (iii)   The law enforcement agency audiovisually
 2            records the identification process and the identification
 3            procedure complies with subsections (d), (e), (f), (g),
 4            (i) and (j).
 5      (d)   Prelineup instructions.--Prior to a live lineup or photo
 6   lineup, the administrator shall apprise the eyewitness of all of
 7   the following:
 8            (1)   That the perpetrator may or may not be among the
 9      individuals presented in the identification procedure and
10      that the eyewitness shall not assume that the administrator
11      knows who the perpetrator is.
12            (2)   That an individual's appearance can change based on
13      facial hair, weight or hair color.
14            (3)   That it is just as important to eliminate innocent
15      individuals as it is to identify potential suspects.
16            (4)   That the eyewitness should not feel compelled to
17      make an identification.
18            (5)   That the investigation will continue whether or not
19      an identification is made.
20            (6)   That if an identification is made, the administrator
21      will ask the eyewitness to state, in the eyewitness's own
22      words, how confident the eyewitness is of the identification.
23      (e)   Contact among eyewitnesses.--If more than one eyewitness
24   views a live lineup or photo lineup in a session, the
25   administrator may not permit the eyewitnesses to communicate
26   with each other until all identification procedures in the
27   session have been completed. Reasonable efforts shall be made so
28   that an eyewitness does not see or hear the identification or
29   nonidentification made by any other eyewitness.
30      (f)   Lineup composition.--The administrator shall conduct the

20250SB0368PN0316                      - 5 -
 1   lineup in a manner that:
 2            (1)   Only one suspect is included in a live lineup or
 3      photo lineup.
 4            (2)   In a live lineup:
 5                  (i)    Each lineup participant is out of view of the
 6            eyewitness prior to the identification procedure.
 7                  (ii)    At least five fillers are used.
 8                  (iii)    If a lineup participant is requested to speak,
 9            move, gesture or change clothing, all lineup participants
10            shall be asked to do the same.
11            (3)   In a photo lineup:
12                  (i)    The photograph of the suspect is placed in a
13            different position in the lineup for each eyewitness.
14                  (ii)    At least five fillers are used.
15                  (iii)    The photo lineup shall be preserved in the
16            original form the photo lineup was shown to each
17            eyewitness.
18      (g)   Comment after lineup.--An administrator or law
19   enforcement officer may not comment or otherwise indicate
20   whether an identification has identified a suspect.
21      (h)   Show-ups.--
22            (1)   If practicable and safe for the eyewitness and law
23      enforcement officers, the individual conducting the show-up
24      shall obtain the eyewitness's description of the perpetrator
25      and shall record or otherwise document the description before
26      commencing the show-up, which shall be preserved and provided
27      as part of discovery. If compliance with this paragraph is
28      not practicable or safe, the individual conducting the show-
29      up shall state in writing the reasons for the failure to
30      comply, which shall be provided as part of discovery.

20250SB0368PN0316                       - 6 -
 1        (2)   If practicable and safe for the eyewitness and the
 2    law enforcement officers, the individual conducting the show-
 3    up shall apprise the eyewitness of each of the following
 4    before commencing the show-up:
 5              (i)    That the perpetrator may or may not be the
 6        individual presented to the eyewitness.
 7              (ii)    That the eyewitness should not feel compelled
 8        to make an identification.
 9              (iii)    That the investigation will continue whether
10        or not an identification is made.
11              (iv)    That if an identification is made, the
12        administrator will ask the eyewitness to state, in the
13        eyewitness's own words, how certain the eyewitness is of
14        the identification.
15        (3)   When performing a show-up, law enforcement personnel
16    shall take reasonable measures to preclude the eyewitness
17    from drawing inferences prejudicial to the suspect, including
18    the following:
19              (i)    Refraining from suggesting through statements or
20        nonverbal conduct that the suspect is or may be the
21        perpetrator of the crime.
22              (ii)    If practicable and safe for the eyewitness and
23        the law enforcement officers, removing handcuffs from the
24        suspect and having the show-up take place at some
25        distance from a squad car.
26        (4)   If there are multiple eyewitnesses to a criminal
27    offense under investigation, police shall make reasonable
28    efforts to prevent an eyewitness from seeing or hearing the
29    identification or nonidentification made by any other
30    eyewitness.

20250SB0368PN0316                   - 7 -
 1             (5)   If an eyewitness is requested to make an
 2      identification of more than one suspect at a show-up, the
 3      suspects shall be separated and the individual conducting the
 4      show-up shall perform a separate show-up for each suspect
 5      when practicable and safe for the eyewitness and the law
 6      enforcement officers.
 7      (i)    Confidence statement.--If an eyewitness identifies an
 8   individual as the perpetrator at an identification procedure,
 9   the administrator shall immediately request a statement from the
10   eyewitness, in the eyewitness's own words, as to the
11   eyewitness's confidence level that the individual identified is
12   the perpetrator. The eyewitness must not be permitted to see or
13   hear any information concerning the identified individual until
14   after the administrator obtains the eyewitness's confidence
15   statement.
16      (j)    Record.--The administrator shall make an audiovisual or
17   audio recording of the identification procedure. In addition to
18   the recording, the administrator shall document and include each
19   identification and any nonidentification result obtained during
20   the identification procedure as well as any confidence
21   statement, which shall be preserved and provided as part of
22   discovery.
23   § 8305.    Jury instructions.
24      (a)    Requirements of subchapter.--At the request of either
25   party, the trial court may instruct the jury as to the
26   requirements of this subchapter and how compliance or failure to
27   comply with the requirements may affect the reliability of the
28   identification.
29      (b)    Failure to comply with subchapter.--If sufficient
30   evidence of failure to comply with this subchapter is presented

20250SB0368PN0316                     - 8 -
 1   at trial, the trial court shall instruct the jury that the jury
 2   may consider the evidence of noncompliance as a reason to view
 3   the identification evidence with caution.
 4   § 8306.    Education and training program.
 5      (a)    Establishment.--
 6             (1)   As soon as practicable, the Pennsylvania State
 7      Police and the Municipal Police Officers' Education and
 8      Training Commission, in conjunction with the Pennsylvania
 9      District Attorneys Association, the Pennsylvania Innocence
10      Project, the Pennsylvania Association of Criminal Defense
11      Lawyers, the Public Defender Association of Pennsylvania and
12      the Juvenile Defenders Association of Pennsylvania, shall
13      establish a comprehensive education and training program on
14      eyewitness identification, including the procedures under
15      section 8304 (relating to eyewitness identification
16      procedures).
17             (2)   As scientific findings regarding variables that
18      affect a witness's vision and memory, practices for
19      minimizing contamination and effective eyewitness
20      identification protocols change and advance, the education
21      and training shall be updated accordingly.
22      (b)    Administration.--The Pennsylvania State Police and the
23   Municipal Police Officers' Education and Training Commission
24   shall administer to law enforcement officers and recruits the
25   education and training program established under subsection (a).
26      (c)    Completion requirement.--Each law enforcement agency
27   shall require each law enforcement officer who is employed by
28   the law enforcement agency and who performs eyewitness
29   identification procedures to complete the education and training
30   program established under subsection (a).

20250SB0368PN0316                     - 9 -
1                              SUBCHAPTER B
2                               (Reserved)
3     Section 2.    This act shall take effect in 60 days.




20250SB0368PN0316                 - 10 -