BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 308
                                                                  Page  1

          Date of Hearing:   April 12, 2011
          Chief Counsel:      Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 308 (Ammiano) - As Amended:  March 14, 2011


           SUMMARY  :   Provides that on or before July 1, 2012 the 
          Department of Justice (DOJ) and the Commission on Peace Officers 
          Standards and Training (CPOST), in consultation with local law 
          enforcement' prosecutors, defense attorneys, and other legal 
          experts, as specified, shall develop guidelines for policies and 
          procedures with respect to the collection and handling of 
          eyewitness evidence.  Specifically,  this bill  :  

          1)Requires that on or before July 1, 2012 the DOJ and CPOST, in 
            consultation with local law enforcement, prosecutors, defense 
            attorneys, and other legal experts, including representatives 
            of the California District Attorneys Association, the Los 
            Angeles District Attorney, the California Public Defenders 
            Association, and the California Attorneys for Criminal 
            Justice, develop guidelines for policies and procedures with 
            respect to the collection and handling of eyewitness evidence.

          2)Provides that the proposed guidelines shall be developed to 
            ensure reliable and accurate suspect identification and shall 
            be consistent with the reliable evidence supporting best 
            practices, including the recommendations of the California 
            Commission on the Fair Administration of Justice.

          3)Requires all law enforcement agencies to adopt the guidelines 
            by January 1, 2013.

          4)Provides that in a criminal action, expert testimony may be 
            admitted regarding the factors that affect the reliability of 
            eyewitness identification if the proponent of the evidence 
            establishes the relevancy and proper qualifications of the 
            witness.

          5)States the following:

             a)   The goal of a law enforcement criminal investigation is 








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               to find and apprehend the persons responsible for 
               committing a crime.

             b)   A comprehensive body of peer-reviewed studies of 
               eyewitness identification procedures indicate that the 
               criminal justice system can improve the accuracy of 
               eyewitness identification by implementing changes to 
               identification procedures.  

             c)   Improving the accuracy of eyewitness identifications 
               will increase the public trust in the criminal justice 
               system.

             d)   Policies and procedures such as those recommended by the 
               National Institute of Justice and the California Commission 
               on the Fair Administration of Justice are readily available 
               and have proven effective in other jurisdictions.

          6)States legislative intent that law enforcement officials adopt 
            and implement the policies and procedures recommended by the 
            California Commission on the Fair Administration of Justice in 
            order to ensure that eyewitness identification procedures in 
            California minimize the chance of misidentification of a 
            suspect.

           EXISTING LAW  :

          1)States that if a witness is testifying as an expert, his or 
            her testimony in the form of an opinion is limited to such an 
            opinion as is:

             a)   Related to a subject sufficiently beyond common 
               experience that the opinion of an expert would assist the 
               trier of fact; and,

             b)   Based on matter (including his or her special knowledge, 
               skill, experience, training, and education) perceived by or 
               personally known to the witness or made known to him or her 
               at or before the hearing, whether or not admissible, that 
               is of a type that reasonably may be relied upon by an 
               expert in forming an opinion upon the subject to which his 
               or her testimony relates unless an expert is precluded by 
               law from using such matter as a basis for his opinion.  
               ÝEvidence Code Section 801(a)(b).]









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          2)Holds that a suggestive pretrial photo spread procedures may 
            taint in-court identifications sufficient to deny the accused 
            due process of law.  In reviewing pretrial procedures for such 
            taint, each case must be considered on its own facts, and that 
            convictions based on eye witness identification at trial 
            following a pretrial identification by photograph will be set 
            aside on that ground only if the photographic identification 
            procedure was so impermissibly suggestive as to give rise to a 
            very substantial likelihood of irreparable misidentification.  
            The court's review must focus not only on the particular 
            pretrial procedure in question, but also on the totality of 
            surrounding circumstances.  ÝSimmons vs. United States (1968) 
            390 U.S. 377, 384.]

          3)States that since it is the likelihood of misidentification 
            that violates a defendant's right to due process, even a 
            suggestive identification procedure does not violate due 
            process so long as the identification possesses sufficient 
            reliability.  While the court's determination of the 
            reliability of identification testimony must be made from the 
            totality of the circumstances, the court's assessment should 
            include five factors:  the opportunity of the witness to view 
            the criminal at the time of the crime, the witness' degree of 
            attention, the accuracy of the witness' prior description of 
            the criminal, the level of certainty demonstrated by the 
            witness at the confrontation, and the length of time between 
            the crime and the confrontation.  A reviewing court is 
            instructed to weigh their existence and against the corrupting 
            effect of the suggestive identification.  ÝNeil vs. Biggers 
            (1972) 409 U.S. 188, 196.]

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Assembly Bill 
            308 seeks to reduce the likelihood of wrongful conviction by 
            improving the accuracy of eyewitness identifications, 
            increasing public trust in the criminal justice system, and 
            implementing policies and procedures recommended by the 
            California Commission on the Fair Administration of Justice 
            that have proven to be effective in other jurisdictions. 

          "This bill will establish a process for the development of 
            guidelines for policies and procedures with respect to the 








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            collection and handling of eyewitness evidence in criminal 
            investigations by law enforcement agencies operating in 
            California.  These guidelines shall be developed to ensure 
            reliable and accurate suspect identifications and shall be 
            consistent with the reliable evidence supporting best 
            practices, thereby helping to reduce the likelihood of 
            wrongful convictions. 

          "Following the Commissions guidelines, Santa Clara County 
            District Attorney's Office and local law enforcement agencies 
            have adopted a line up protocol requiring double-blind and 
            sequential identification procedures, and have agreed to the 
            protocol without dissent.  It has been successfully 
            implemented for over four years without complaint. 

          "Several states have already adopted these best practice 
            guidelines, and California must follow in suit.  Creating 
            uniform guidelines that help improve the accuracy of 
            eyewitness identification is essential not only in convictions 
            that heavily rely on eyewitness identification, such as 
            robbery, but also in all crimes, non-violent or violent.  AB 
            308 is imperative to preventing innocent people from becoming 
            incarcerated, preventing the real perpetrator from committing 
            the same, or potentially worse crimes, preventing victims' 
            families from being subjected to double the trauma, with the 
            loss or injury of a loved one, and the guilt over conviction 
            of an innocent person."

           2)Report of the California Commission on the Fair Administration 
            of Justice  :  SR 44 (Burton), of the 2003-04 Legislation 
            Session, stated a desire to study the effectiveness of the 
            death penalty in order to avoid the possibility of wrongful 
            executions and established the California Commission on the 
            Fair Administration of Justice.  The Commission's 
            responsibility is: 

          " . . . to study and review the administration of criminal 
            justice in California to determine the extent to which that 
            process has failed in the past, resulting in wrongful 
            executions or the wrongful conviction of innocent persons; to 
            examine ways of providing safeguards and making improvements 
            in the way the criminal justice system functions; to make any 
            recommendations and proposals designed to further ensure that 
            the application and administration of criminal justice in 
            California is just, fair, and accurate; and be it further that 








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            the Commission shall consist of members to be appointed by the 
            Senate Committee on Rules, which shall also designate the 
            chair.  The Commission shall meet regularly; establish a 
            staff; hold public hearings; review existing research; 
            commission new research; and solicit public comments from 
            scholars, judges, prosecutors, law enforcement, private 
            defense lawyers, public defenders, elected officials, victims' 
            organizations, authorities in the criminal justice system, and 
            members of the public; and be it further that the members of 
            the Commission shall not receive compensation, but shall be 
            reimbursed for necessary travel expenses for the purpose of 
            attending meetings of the Commission, including such public 
            meetings as the Commission shall schedule, and the Commission 
            shall be funded by private sources; and be it further that the 
            Commission shall meet and make recommendations to the 
            Legislature and Governor no later than December 31, 2007, on 
            recommendations on the administration of justice, addressing 
            the matters set forth herein."

          In April 2006, the Commission released a report, "Report and 
            Recommendations Regarding Eyewitness Identification 
            Procedures".  In that report, the Commission stated, "The 
            Commission has determined that there are reforms which can 
            improve criminal investigation techniques and thus further the 
            cause of justice in California.  Our recommendation of these 
            reforms need not await the issuance of our final report.  One 
            such set of reforms involves procedures to improve the 
            reliability of eyewitness identifications."  

          The Commission cited several recommendations, a few of which are 
            "all witnesses should be instructed that a suspect may or may 
            not be in a photo spread, lineup or show-up, and they should 
            be assured that an identification or failure to make an 
            identification will not end the investigation; live lineup 
            procedures and photo displays should be preserved on video 
            tape, or audio tape when video is not practicable.  When video 
            taping is not practicable, a still photo should be taken of a 
            live lineup and police acquisition of necessary video 
            equipment should be supported by legislative appropriations; 
            at the conclusion of a lineup, photo presentation, or show-up, 
            a witness who has made an identification should describe his 
            or her level of certainty, and that statement should be 
            recorded or otherwise documented, and preserved.  Witnesses 
            should not be given feedback confirming the accuracy of their 
            identification until a statement describing level of certainty 








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            has been documented."

           3)Concern Regarding Eyewitness Misidentification  :  According to 
            a study published in the Psychology, Public Policy and Law 
            Journal, "One explanation for the high prevalence of rape and 
            sexual assault cases among exonerations is recent improvements 
            in DNA technology that can now be used not only to identify a 
            perpetrator of rape at trial, but also to clear an individual 
            of the crime both before and after conviction.  Mistaken 
            eyewitness identification was involved in 88% of the rape and 
            sexual assault cases.  This suggests that unexposed mistaken 
            identification could be present in other convictions that 
            heavily rely upon eyewitness identifications, such as robbery 
            cases where DNA evidence is not normally present.  Among the 
            80 cases in which rape defendants were subsequently exonerated 
            and the race of both parties was known, 39 of the cases 
            involved black men who were wrongfully convicted of raping 
            white women, and nearly all of these cases involved mistaken 
            eyewitness identifications.  Since less than 10% of all rapes 
            in the United States involve white victims and black 
            perpetrators, the fact that a disproportionate number of the 
            rape exonerations involve white victims misidentifying black 
            suspects suggests that the risk of error is greater in 
            cross-racial identifications.  Research has consistently 
            confirmed that cross-racial identifications are not as 
            reliable as within-race identifications."  ÝSymposium, "The 
            Other Race Effect and Contemporary Criminal Justice:  
            Eyewitness Identification and Jury Decision Making" (2001), 7 
            Psychology, Pub. Policy & Law, 3-262.]

           4)United States DOJ Guidelines  :  According to a report published 
            by the United States DOJ cited by the Commission on the Fair 
            Administration of Justice, "In 1998, United States Attorney 
            General (AG) Janet Reno assembled 34 professionals from 
            throughout the United States and Canada to form a Technical 
            Working Group for Eyewitness Evidence.  Drawing upon the 
            research of psychologists as well as the practical 
            perspectives of prosecutors, defense lawyers and police 
            investigators, the Working Group produced a comprehensive 
            guide for law enforcement to increase the accuracy and 
            reliability of eyewitness evidence and decrease the numbers of 
            wrongful identifications.  Though the guidelines were not 
            mandated, DOJ's recommendations have been very influential in 
            other states.  In the State of New Jersey, for example, AG 
            John J. Farmer promulgated Guidelines for identification 








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            procedures based upon the United States DOJ's recommendations, 
            for implementation by all law enforcement agencies in the 
            state."

           5)Argument in Support .   According to the  California Public 
            Defenders Association  , "AB 308 would require law enforcement 
            officials to adopt and implement the policies and procedures 
            recommended by the bi-partisan, Senate appointed California 
            Commission on the Fair Administration of Justice (CCFAJ) in 
            order to ensure that eyewitness identification procedures in 
            California minimize the chance of misidentification of a 
            suspect and hold accountable the actual person(s) responsible 
            for a crime accountable.  Specifically, AB 308 would require 
            that on or before July 1, 2012, DOJ, and CPOST, in 
            consultation with local law enforcement agencies, prosecutors, 
            defense attorneys, and other legal experts, including 
            representatives of the California District Attorneys 
            Association, the Los Angeles County District Attorney, 
            California Public Defenders Association, and California 
            Attorneys for Criminal Justice, develop guidelines for 
            policies and procedures with respect to collection and 
            handling of eyewitness evidence in criminal investigations by 
            all law enforcement agencies operating in California."  
           
           6)Argument in Opposition  .  According to the  California State 
            Sheriffs' Association  , "AB 308 would declare the legislative 
            intent that law enforcement officials adopt and implement the 
            policies and procedures regulating eyewitness lineup 
            identifications that are recommended by the California 
            Commission on the Fair Administration of Justice in order to 
            ensure that eyewitness identification procedures in California 
            to minimize the chance of misidentification of a suspect.

          "While we support improvements to our system that would avoid 
            misidentification of suspects, we don't believe that AB 308 
            achieves that.  Unfortunately, the recommended changes are out 
            of balance with justice and would instead result in unjustly 
            casting doubt in a jury's mind, resulting in the inability to 
            truly have a fair trial." 

           7)SB 756 Veto Message  :  In his veto message, Governor 
            Schwarzenegger wrote, "While I support the efforts to improve 
            reliability and accuracy of eyewitness identifications, this 
            bill goes too far in attempting to address the problems of 
            unreliable witness identifications.








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          "This bill would mandate that the DOJ and CPOST consider 
            questionable recommendations from the California Commission on 
            the Fair Administration of Justice and require all California 
            law enforcement agencies to adopt whichever guidelines DOJ and 
            CPOST choose.

          "Law enforcement agencies must have the authority to develop 
            investigative policies and procedures that they can mold to 
            their own unique local conditions and logistical circumstances 
            rather than be restricted to methods created that may make 
            sense from a broad statewide perspective."

           8)Prior Legislation  .

             a)   SB 756 (Ridley-Thomas), of the 2007-08 Legislative 
               Session, was almost identical to this bill in that SB 765 
               required that the DOJ and others develop guidelines for 
               policies and procedures in the collection and handling of 
               eye witness evidence in criminal investigations.  SB 756 
               was vetoed.

             b)   SB 1591 (Ridley-Thomas), of the 2007-08 Legislative 
               Session, was almost identical to this bill in that it 
               required that the DOJ and others develop guidelines for 
               policies and procedures in the collection and handling of 
               eye witness evidence in criminal investigations.  SB 1591 
               was held on the Senate Appropriations Committee's Suspense 
               File.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Public Defenders Association
          Conference of California of Bar Associations 
          Friends Committee on Legislation of California

           Opposition 
           
          California District Attorneys Association
          California Narcotics Officers' Association
          California Police Chiefs Association
          California State Sheriffs Association
          Commission on Peace Officers Standards and Training








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          Analysis Prepared by  :    Gregory Pagan / PUB. S. / (916) 
          319-3744