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 SB 171 Page 2 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 SB 171 Page 3 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 SB 171 Page 4 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 SB 171 Page 5 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