BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 171
                                                                  Page  1

          Date of Hearing:   August 16, 2005

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                   Judy Chu, Chair

                   SB 171 (Alquist) - As Amended:  August 7, 2006 

          Policy Committee:                              Public  
          SafetyVote:  5-1

          Urgency:     No                   State Mandated Local Program:  
          Yes    Reimbursable:              Yes

           SUMMARY  

          This bill requires all custodial interrogations of serious and  
          violent felony suspects conducted at a place of detention to be  
          electronically recorded. Specifically, this bill:

          1)Defines custodial interrogation to mean questioning conducted  
            at a place of detention likely to elicit incriminating  
            response from a suspect, under circumstances in which the  
            suspect does not feel free to leave or terminate the  
            questioning. Place of detention is defined as a police  
            station, correctional facility or other law enforcement  
            facility.

          2)Requires audio recording for serious and violent felony  
            interrogations and recommends audio-visual recording for  
            homicide interrogations. 

          3)Specifies "the state" shall not destroy or alter any  
            electronic recording made of a custodial interrogation of a  
            defendant until a conviction for any offense relating to the  
            interrogation is final and all appeals are exhausted or the  
            prosecution of the defendant for that offense is barred by  
            law. 

          4)Provides exceptions to the recording requirement if the  
            necessary equipment could not be obtained during the time that  
            the defendant could be lawfully detained or if equipment  
            fails.

          5)Requires, if a court finds a defendant was subjected to a  
            custodial interrogation that was not recorded pursuant to this  








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            bill, the court shall, at the request of the defendant,  
            provide the jury with a cautionary instruction to be developed  
            by the Judicial Council.   
           
           FISCAL EFFECT  

          1)Unknown reimbursable local start-up costs (GF), potentially in  
            the range of $5 million for audio recording equipment and  
            recording storage. To the extent city and county agencies are  
            able to file successful mandate claims for personnel and  
            facility improvements for recording purposes, costs could be  
            greater. Ongoing costs for equipment replacement and repair  
            would likely be less than $200,000.  

            Though many law enforcement agencies in California currently  
            record interrogations of violent crime suspects, this bill  
            would mandate such recordings, thereby allowing all local law  
            enforcement agencies to file a claim with the state for  
            interrogation costs related to recording equipment, equipment  
            maintenance and equipment replacement, and facilities.

            Though the author suggests the cost of recording equipment  
            need not be significant, most interviews are recorded  
            surreptitiously, which requires more elaborate equipment. Law  
            enforcement authorities and district attorneys state that the  
            cost of equipment and interrogation rooms, which allow  
            surreptitious recording and require specific sound standards,  
            range into the tens of thousands of dollars. With 58 sheriff  
            departments and 330 police departments, if the average cost is  
            $25,000 for the 50 largest departments, and $10,000 for the  
            balance, mandated start-up costs would be $4.6 million.  

          2)Unknown potential GF trial court savings to the extent  
            mandated interrogation recording results in fewer false  
            confessions, expedited trials as a result of clearer evidence,  
            and fewer motions relating to interrogation issues.  

          3)Minor absorbable costs to the Judicial Council to develop jury  
            instructions as specified.   

           COMMENTS  

           1)Rationale  . According to the author and sponsor, the ACLU, this  
            bill, the "Truth in Prosecution Act," will help ensure the  
            correct person is prosecuted. Based on the work of the Santa  








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            Clara District Attorney and law enforcement agencies in Santa  
            Clara County, this bill requires law enforcement agencies to  
            electronically record interrogations of violent felony  
            suspects. For dozens of California law enforcement agencies  
            this is current practice. The result of recording police  
            interrogations is an accurate record of the suspect's  
            statements and law enforcement's actions. The goal is to avoid  
            false confessions by suspects that ultimately harm the  
            public's safety."

            According to the ACLU, "Every year, many people are wrongly  
            convicted of crimes because of false confessions. Similarly,  
            many law enforcement officers are accused of abusing prisoners  
            and/or misstating what they said during unrecorded sessions,  
            leading to motions to suppress confessions or civil  
            litigation. Many of these disputes can be avoided by  
            videotaping the entire custodial interrogation.


            "This bill will help decrease the likelihood of false  
            confessions, thereby protecting the innocent while  
            simultaneously providing the best evidence against the guilty.  
            Recordings also prevent disputes about officers' conduct, the  
            treatment of suspects and statements they made. Police are not  
            called upon to paraphrase statements or try later to describe  
            suspects' words, actions, and attitudes."


           2)This bill reflects the recent recommendations of the  
            California Commission on the Fair Administration of Justice.   
            Established by SR 44 (Burton) in 2004, the Commission was  
            directed to study and review the administration of criminal  
            justice and recommend improvements. On July 25, 2006, the  
            Commission released its recommendations regarding false  
            confessions, which are reflected in this bill. The report was  
            signed by 18 of 19 members, including former Attorney General  
            John Van de Kamp (the chair); Attorney General Bill Lockyer;  
            L.A.P.D. Chief William Bratton;  District Attorneys Jim Fox  
            (San Mateo), George Kennedy (Santa Clara) and Greg Totten  
            (Ventura). L.A. Sheriff Lee Baca abstained. The report states:




            "There are a number of reasons why the taping of  








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            interrogations actually benefits the police departments that  
            require it. First, taping creates an objective, comprehensive  
            record of the interrogation. Second, taping leads to the  
            improved quality of interrogation, with a higher level of  
            scrutiny that will deter police misconduct and improve the  
            quality of interrogation practices. Third, taping provides the  
            police protection against false claims of police misconduct.  
            Finally, with taping, detectives, police managers,  
            prosecutors, defense attorneys and judges are able to more  
            easily detect false confessions and more easily prevent their  
            admission into evidence?.
           
            "The only objection to mandating the recording of police  
            interrogation heard by the Commission was to the potential  
            cost of video recording, as compared to audio recording?.
           
            "The cost of recording custodial interrogations must be  
            measured against the cost of false confessions, which takes a  
            devastating human toll upon those who are wrongfully charged,  
            their families, the victims of crime, and their families.  
            Closing a case with conviction of the wrong person based upon  
            a false confession also leaves the real perpetrator at large,  
            to victimize others. The costs of litigating claims of police  
            misconduct that might have been deterred by taping, and the  
            savings in avoiding false claims of police misconduct should,  
            in the long run, more than pay the costs of implementation of  
            a mandate that all custodial interrogation in serious criminal  
            cases be electronically recorded."


           3)Opponents  , including the State Sheriffs Association and CSAC,  
            express concerns related to unfunded mandates and law  
            enforcement flexibility. The Sheriffs Association states,  
            "this bill is a huge unfunded mandate and it could provide an  
            escape route for offenders who make their plea in a situation  
            when video or other recording equipment was not up and running  
            and/or in proper working order. While most law enforcement  
            agencies strive to record interrogations of suspects in  
            custodial situations via video and/or audio, there are times  
            when a suspect will confess, give statements or give useful  
            information in a custodial setting but away from video  
            equipment."

           
          1)Prior Legislation.  AB 161 (Dymally, 2003),  encouraged  law  








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            enforcement to tape all custodial interrogations. AB 161  
            passed the Assembly 41-31 before being amended in the Senate  
            into an unrelated gun bill. 
           
           
           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081