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