BILL ANALYSIS Ó
AB 308
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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