BILL ANALYSIS Ó AB 308 Page 1 Date of Hearing: May 4, 2011 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair AB 308 (Ammiano) - As Amended: March 14, 2011 Policy Committee: Public SafetyVote: 5-2 Urgency: No State Mandated Local Program: Yes Reimbursable: Yes SUMMARY This bill: 1)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. 2)Requires, by July 1, 2012, the Department of Justice (DOJ) and the Commission on Peace Officers Standards and Training (POST), in consultation with local law enforcement and specified legal authorities, to develop guidelines for policies and procedures regarding handling of eyewitness evidence in criminal investigations. These guidelines, to ensure reliable and accurate suspect identification, must be consistent with best practices, including recommendations of the CA Commission on the Fair Administration of Justice (commission). 3)Requires all law enforcement agencies to adopt these guidelines by Jan. 1, 2013. FISCAL EFFECT AB 308 Page 2 1)One-time GF costs in the range of $250,000 to DOJ and POST combined, to develop guidelines by July 1, 2012. 2)One-time costs to POST to develop a training module that could range from absorbable, if limited to a training bulletin, to $100,000 for development of a video trainer. 3)Unknown, potentially significant, state-reimbursable mandated costs, in the millions of dollars, for all local law enforcement agencies to adopt the guidelines by Jan. 1, 2013. Preliminary information from county sheriffs' offices indicates statewide implementation costs for county sheriffs alone could exceed $15 million, primarily to conduct more staff-intensive line-ups. While this estimate seems high, and assumes required implementation of double-blind line-ups, police chiefs agree that depending on the guidelines they are required to adopt, annual state-reimbursable costs could be in the millions of dollars. COMMENTS 1)Rationale . This bill reflects the recommendations of the CA Commission on the Fair Administration of Justice to address problems related to erroneous eyewitness identification by developing and adopting standards and guidelines recommended by the American Bar Association (ABA), the U.S. Department of Justice and the commission. According to the author, "This bill will establish a process for the development of guidelines for policies and procedures with respect to the collection and handling of eyewitness evidence in criminal investigations by law enforcement AB 308 Page 3 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 Commission's guidelines, Santa Clara County District Attorney's Office and local law enforcement agencies have adopted a lineup 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)Recommendations of the CA 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, particularly regarding wrongful convictions and executions. In April 2006, the commission released recommendations regarding eyewitness identification procedures, which identified reforms regarding procedures to improve the reliability of eyewitness identifications, including a recommendation for legislation to require development of guidelines regarding eyewitness evidence. Additional recommendations included: a) All witnesses should be instructed that a suspect may or may not be in a photo spread, lineup, and they should be assured that identification or failure to make an identification will not end the investigation. AB 308 Page 4 b) Lineup procedures and photo displays should be preserved on video. c) At the conclusion of a lineup or photo presentation, a witness who has made an identification should describe his or her level of certainty, and that statement should be documented and preserved. d) Witnesses should not be given feedback confirming the accuracy of their identification until a statement describing level of certainty has been documented. 3)Concern Regarding Eyewitness Misidentification . As referenced in the Assembly Public Safety analysis, a study published in the Psychology, Public Policy and Law Journal stated that one explanation for the high prevalence of rape and sexual assault cases among exonerations is recent improvements in DNA technology. Mistaken eyewitness identification was involved in 88% of the rape and sexual assault exoneration cases. This suggests mistaken identifications are likely present in other convictions that heavily rely upon eyewitness identifications, such as robbery cases where DNA evidence is not often present. 4)Amendments the author may wish to consider include (a) making DOJ the sole lead in developing the guidelines, consulting with POST; (b) extending the deadlines for guideline development and adoption to provide DOJ and local law enforcement additional time; (c) requiring law enforcement to study and consider, rather than adopt and implement, commission recommendations; and (e) requiring DOJ to report to the Legislature any recommendations for statewide statutory changes. 5)Previous legislation . a) SB 756 (Ridley-Thomas), 2007-08, was similar to this AB 308 Page 5 bill and was vetoed. Gov. 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. "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." b) SB 1591 (Ridley-Thomas), 2007-08 Legislative Session, was similar to this bill and was held on the Senate Appropriations Committee's Suspense File. c) SB 1544 (Migden, 2006), was similar to this bill and was vetoed. 6)Opposition . This bill is opposed by a series of law enforcement entities, including the CA Police Chiefs Association, CA Peace Officers Association, and the California State Sheriffs Association, due to the requirement that they adopt unknown guidelines and due to the attendant cost concerns. Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081