BILL ANALYSIS Ó
AB 308
Page 1
ASSEMBLY THIRD READING
AB 308 (Ammiano)
As Amended May 27, 2011
Majority vote
PUBLIC SAFETY 5-2 APPROPRIATIONS 11-6
-----------------------------------------------------------------
|Ayes:|Ammiano, Cedillo, Hill, |Ayes:|Fuentes, Blumenfield, |
| |Mitchell, Yamada | |Bradford, Charles |
| | | |Calderon, Davis, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Hagman |Nays:|Harkey, Campos, Donnelly, |
| | | |Nielsen, Norby, Wagner |
| | | | |
-----------------------------------------------------------------
SUMMARY : Provides that, on or before January 1, 2013, the
Department of Justice (DOJ) in consultation with the Commission
on Peace Officer Standards and Training (CPOST), 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, on or before January 1, 2013, the DOJ in
consultation with CPOST, 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, to 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 DOJ to report to the Legislature on or before July 1,
AB 308
Page 2
2013, the developed eyewitness identification guidelines along
with recommendation of any legislation needed to implement the
guidelines.
4)Provides that in a criminal action, or in a juvenile court
proceeding if the subject of the proceeding is or may be
adjudged a ward of the juvenile court 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
to find and apprehend the persons responsible for
committing a crime;
b) A comprehensive body of peer-reviewed studies of
eyewitness identification procedures indicates 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; and,
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 study
and consider adopting 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
AB 308
Page 3
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 or her
opinion.
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.
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.
AB 308
Page 4
FISCAL EFFECT : According to the Assembly Appropriations
Committee, one-time General Fund costs in the range of $250,000
to DOJ to develop guidelines by July 1, 2013.
COMMENTS : 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
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."
Please see the policy committee for a full discussion of this
AB 308
Page 5
bill.
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744
FN: 0001032