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 








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          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 








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          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 








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          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.