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  








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          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 








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            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.









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             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 








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               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