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 AB 308 Page 2 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).] AB 308 Page 3 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 AB 308 Page 4 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 AB 308 Page 5 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 AB 308 Page 6 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 AB 308 Page 7 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. AB 308 Page 8 "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 AB 308 Page 9 Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744