BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Christine Kehoe, Chair AB 308 (Ammiano) Hearing Date: 08/15/2011 Amended: 05/27/2011 Consultant: Jolie Onodera Policy Vote: Public Safety 5-2 _________________________________________________________________ ____ BILL SUMMARY: AB 308 would require, by January 1, 2013, the Department of Justice (DOJ) in consultation with the Commission on Peace Officer Standards and Training (POST) and other specified entities to develop guidelines for policies and procedures with respect to the collection and handling of eyewitness evidence in criminal investigations by all law enforcement agencies. This bill also declares legislative intent that law enforcement officials study and consider adopting procedures recommended by the California Commission on the Fair Administration of Justice (Commission). _________________________________________________________________ ____ Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund DOJ development of $642 $532 $0 General guidelines POST participation Minor, absorbable costs to participate;General potential future cost pressure of $100 for training module Legislative intent directed Substantial future cost pressure to adopt General at law enforcement guidelines; state-reimbursable if mandated _________________________________________________________________ ____ STAFF COMMENTS: This bill meets the criteria for referral to the Suspense File. This bill would require that on or before January 1, 2013, the DOJ in consultation with POST, local law enforcement agencies, prosecutors, defense attorneys, and other legal experts, to develop guidelines for policies and procedures with respect to AB 308 (Ammiano) Page 1 the collection and handling of eyewitness evidence in criminal investigations by all law enforcement agencies operating in California. The guidelines would be required to be developed to ensure reliable and accurate suspect identifications and shall be consistent with the recommendations of the Commission. This bill would require the DOJ to report to the Legislature by July 1, 2013, the guidelines developed along with recommendations of any legislation needed to implement the guidelines. The DOJ indicates limited-term staffing at a cost of $642,000 in 2011-12 and $532,000 in 2012-13 would be needed to consult with all parties, develop the guidelines, and prepare the report to the Legislature. Absent urgency funding, the DOJ indicates they would be unable to meet the timelines specified in the bill. Staffing costs would consist of one two-year limited term Special Agent Supervisor (SAS), one Deputy Attorney General (DAG), and 1.5 limited-term administrative support positions. The SAS and DAG would meet and work with parties to develop the new guidelines for eyewitness identification protocols. Administrative support would attend meetings and assist in the preparation of the report to the Legislature. There would be substantial future cost pressure to adopt the guidelines recommended by the DOJ. Although not specified in the bill, the DAG could also be involved in the development of a training curriculum for all law enforcement agencies that reflected the recommended guidelines, creating additional cost pressure on the DOJ. The POST indicates that costs as a participant in the development of the guidelines will be minor and absorbable within existing resources. Although not specifically required under the provisions of the bill, there could be future cost pressure of approximately $100,000 for POST to develop a training module to be made available to law enforcement if curriculum was not developed by the DAG as referenced above. POST has indicated these costs would be absorbable. The bill also includes legislative intent language stating law enforcement officials study and consider adopting the policies and procedures recommended by the Commission in order to ensure that eyewitness identification procedures minimize the chance of misidentification of a suspect. In its report issued in April AB 308 (Ammiano) Page 2 2006, the Commission recommendations included the implementation of a lineup protocol requiring double-blind and sequential identification procedures. Although not mandated to adopt the recommended policies, there would be significant future cost pressure for law enforcement agencies to adopt the guidelines developed by the DOJ and consistent with the Commission recommendations as required under the provisions of this bill. If mandated by the Legislature to adopt the guidelines established by the DOJ, state-reimbursable costs in the millions of dollars could be incurred. Local law enforcement has indicated estimated potential costs of up to $15 million statewide in order to conduct more staff-intensive line-ups. This bill would also provide 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 court, expert testimony may be admitted regarding factors that affect the reliability of eyewitness identification, if the proponent of the evidence establishes relevancy and proper qualifications of the witness. The Judicial Council indicates there would be no fiscal impact on the courts associated with this provision. Prior Legislation. SB 1591 (Ridley-Thomas) 2008 was similar to this measure and was held on the Senate Committee on Appropriations Suspense File. SB 756 (Ridley-Thomas) 2007 was also similar to this measure and was vetoed by the Governor with the following message: I am returning Senate Bill 756 without my signature. 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 eyewitness identifications. This bill would mandate that the Department of Justice (DOJ) and the Commission on Peace Officer Standards and Training (POST) 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 POST choose. Law enforcement agencies must have the authority to develop AB 308 (Ammiano) Page 3 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.