BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 687 (Leno)
As Introduced February 18, 2011
Hearing date: April 5, 2011
Penal Code
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CRIMINAL PROCEDURE: INFORMANTS
HISTORY
Source: California Public Defenders Association
Prior Legislation: SB 1589 (Romero) - Vetoed 2008
SB 609 (Romero) - Vetoed 2007
Support: American Civil Liberties Union; Northern California
Innocence Project; Death Penalty Focus; Friends
Committee on Legislation of California
Opposition:California District Attorneys Association
KEY ISSUE
SHOULD THE LAW PROVIDE THAT A JURY OR JUDGE MAY NOT CONVICT A
DEFENDANT, FIND A SPECIAL CIRCUMSTANCE TO BE TRUE, OR USE A FACT IN
AGGRAVATION BASED ON THE UNCORROBORATED TESTIMONY OF AN IN-CUSTODY
INFORMANT?
PURPOSE
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The purpose of this bill is to provide that a defendant cannot
be convicted based on the uncorroborated testimony of an
in-custody informant.
Existing law provides that a conviction cannot be based upon the
testimony of an accomplice unless it is corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense or the circumstances thereof. An
accomplice is hereby defined as one who is liable to prosecution
for the identical offense charged against the defendant on trial
in the cause in which the testimony of the accomplice is given.
(Penal Code § 1111)
This bill provides that a jury or judge may not convict a
defendant, find a special circumstance true or use a fact in
aggravation based on the uncorroborated testimony of an
in-custody informant.
This bill provides that the testimony of an in-custody informant
shall be corroborated by other evidence that connects the
defendant with commission of the offense, the special
circumstance, or the evidence offered in aggravation to which
the in-custody informant testifies.
This bill provides that corroboration is not sufficient if it
merely shows the commission of the offense or the special
circumstance of the circumstance in aggravation.
This bill provides that corroboration of an in-custody informant
shall not be provided by the testimony of another in-custody
informant unless the party calling the in-custody informant as a
witness establishes by a preponderance of the evidence that the
in-custody informant has not communicated with another
in-custody informant on the subject of the testimony.
This bill defines "in-custody informant" as a person, other than
a codefendant, percipient witness, accomplice, or
co-conspirator, whose testimony is based on statements allegedly
made by the defendant while both the defendant and the informant
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were held within a city or county jail, state penal institution,
or correctional institution.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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COMMENTS
1 Need for This Bill
According to the author:
SB 687 is based on a simple premise that proper
safeguards on in-custody informant testimony will help
prevent future injustice. The truth is, wrongful
convictions can and do happen in California. According
to research, California has sent more innocent people to
prison for longer terms than any other state. No fewer
than 150 and as many as 1,500 people are now in prison
for life for crimes they did not commit.
In 2006, the Legislature established the California
Commission on the Fair Administration of Justice
(Commission) to examine miscarriages of justice such as
wrongful convictions and make recommendations on
safeguards to ensure accuracy and fairness within the
criminal justice system.
In crafting the recommendations, the Commission heard
public testimony and took special note of the findings
of the Los Angeles County Grand Jury report on Jail
Informants.
(http://www.ccfaj.org/documents/reports/jailhouse/expert/
1989-1990 %20LA%20County%20Grand%20Jury%20Report.pdf.)
The comprehensive grand jury investigation arose out of
a scandal involving Leslie Vernon White, a Los Angeles
jail inmate who made national news after detailing
methods for fabricating testimony to gain lenience. The
report is considered to be the most thorough review of
the use of informants as witnesses to date. The LA
County District Attorney's office then responded to the
abuses revealed in the report by adopting policy
guidelines to strictly control the use of jailhouse
informants as witnesses.
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The LA District Attorney's policy now requires "strong
corroborative evidence," consisting of more than the
fact that the informant appears to know details of the
crime thought to be known only to law enforcement. A
deputy wishing to use a jailhouse informant as a
prosecution witness must obtain the prior approval of a
Jailhouse Informant Committee headed by the Chief
Assistant District Attorney. Further, the office
maintains a Central Index of jailhouse informants who
have offered to be, or who have been used as witnesses.
All of the records of jailhouse informants are
preserved, including notes, memoranda, computer
printouts, records of promises made, payments made, or
rewards given, as well as records of the last known
location of the informant and records relating to cell
assignments.
According to a 2005 study by the Center for Wrongful
Convictions at Northwestern School of Law, testimony
from snitches and other informants is the leading cause
of wrongful convictions in death penalty cases in the
United States. Other research suggests that 20% of all
wrongful convictions in California are the result of
perjured informant statements at trial. It's not
surprising then that the Commission focused on the use
of informant as witnesses and attempted to ascertain to
what degree the best practices exemplified by the LA
District Attorney in the wake of the grand jury report
were being implemented by other District Attorneys
throughout the state. The Commission survey found that
the policy guidelines varied significantly from one
jurisdiction to another. The Commission was also
informed by Professor Ellen Yaroshefsky of the Benjamin
N. Cardozo School of Law that 17 states currently
require the corroboration of in-custody informants.
Given that California law did not directly require
corroboration for in-custody informant testimony and
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jurisdictional policies were inconsistent, by a
unanimous, bipartisan vote, the Commission recommended a
statutory change that would prohibit a judge or jury
from convicting a defendant, finding a special
circumstance to be true, or using a fact in aggravation
based solely on the uncorroborated testimony of an
in-custody informant. This recommendation, now in the
form of SB 687, will increase the integrity of the
criminal justice system and improve the quality of
evidence presented at criminal trials. The measure
recognizes that "jailhouse" informants are some of the
most unreliable witnesses and their testimony should be
greeted with skepticism to ensure that no person loses
life or liberty based solely on the claims of this type
of witness.
2. Informant Testimony
As noted in the author's statement, the California Commission
on the Fair Administration of Justice (CCFAJ) conducted a
hearing on the issue of informant testimony on September 20,
2006. CCFAJ took testimony from a number of witnesses
regarding informant testimony by both in-custody and
out-of-custody informants. CCFAJ then issued a report
addressing the use of testimony from informants who
themselves are in custody or facing criminal prosecution.
CCFAJ's report noted that informant testimony can be important
in finding a special circumstance. Specifically the report
states:
Michael Laurence, the Director of the California Habeas
Corpus Resource Center Ýand a member CCFAJ], explained
to the Commission the reasons for the high prevalence of
the use of arrested or charged informants in capital
cases. In his opinion, while they are rarely needed to
supply evidence of the defendant's guilt of the
underlying crime, they often provide crucial testimony
to prove the alleged special circumstances which make
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the defendant eligible for the death penalty, or to
provide evidence to persuade the jury to select death as
the appropriate penalty. State Public Defender Michael
Hersek Ýa member of CCFAJ] reported to the Commission
that of the 117 death penalty appeals currently pending
in his office, seventeen featured testimony by
in-custody informants, and another six included
testimony by informants who were in constructive
custody. Thus, confidence in the reliability of the
testimony of arrested or charged informant witnesses is
a matter of continuing concern to ensure that the
administration of justice in California is just, fair
and accurate. (California Commission on the Fair
Administration of Justice "Report and Recommendations
Regarding Informant Testimony" p. 1-2 www.CCFAJ.org)
At the hearing, CCFAJ took testimony on the Los Angeles District
Attorney's approach to informants and looked to other District
Attorneys' offices to determine the best practices and made
recommendations as to practices that should be implemented when
feasible. CCFAJ learned that some of the larger counties they
heard from do have written policies regarding the use of
in-custody informants and that the use of in-custody informants
is generally rare.
CCFAJ learned from Professor Ellen Yaroshefsky of the Benjamin
N. Cardozo School of Law that seventeen states now require the
corroboration of in-custody informants. In California,
corroboration is currently statutorily required for the
accomplice testimony but not in-custody informants. CCFAJ
recommended that a statutory requirement of corroboration
similar to the requirement for accomplice testimony be enacted
for testimony by an in-custody informant. CCFAJ concluded that
this was important because "the testimony of in-custody
informants potentially presents even greater risks than the
testimony of accomplices, who are incriminating themselves as
well as the defendant." (Id. p. 6)
3. Corroboration Required for In-custody Informant
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This bill provides that a judge or jury may not convict a
defendant, find special circumstances to be true, or use a
fact in aggravation based on the uncorroborated testimony of
an in-custody informant. Corroboration must be other evidence
that independently tends to connect the defendant with the
commission of the offense, special circumstance or evidence
offered in aggravation. Corroboration is not sufficient if it
merely shows the commission of the offense or the special
circumstance or the circumstance in aggravation. However, the
bill provides that corroboration of an in-custody informant
shall not be provided by the testimony of another in-custody
informant unless the party calling the in-custody informant as
a witness establishes by a preponderance of the evidence that
the in-custody informant has not communicated with another
in-custody informant on the subject of the testimony.
SHOULD THE LAW PROVIDE THAT A JUDGE OR JURY MAY NOT CONVICT
A DEFENDANT, FIND SPECIAL CIRCUMSTANCES TO BE TRUE OR USE A
FACT IN AGGRAVATION BASED ON THE UNCORROBORATED TESTIMONY
OF AN IN-CUSTODY INFORMANT?
4. Support
The Northern California Innocence Project supports this bill
stating:
Informant testimony is an undeniably valuable law
enforcement tool, but, as SB 687 recognizes, the use of
informants, or incentivized witnesses, provides many
opportunities for misuse or unfair criminal justice
outcomes. The power of incentives-from jailhouse benefits
to reduced or dropped charges-has a great potential to
breed unreliable testimony since the informant is
participating in a process in which he seeks to provide
agreeable information to those with the authority to grant
rewards. Therefore, such testimony is inherently suspect,
and has proven often to be unreliable. Justice is
undermined when convictions are based on unreliable and
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inaccurate testimony. What is more, wrongful convictions,
including those resulting from the testimony of
uncorroborated jailhouse informants, <1> erodes the
public's faith in the fair administration of justice.
5. Opposition
The California District Attorneys Association opposes this bill
stating:
To remedy the perception of a potential problem in a small
number of criminal cases in California that rely solely on
the uncorroborated testimony of an in-custody informant, SB
687 creates a sweeping prohibition on the use of such
evidence. The premise underlying the measure is that such
evidence is inherently suspect because in-custody
informants have a strong incentive to manufacture false
statements. While logically true in the abstract, the
concrete reality is that current criminal procedure
provides adequate safeguards in every actual case. The
uncorroborated testimony of any witness is either evaluated
by a judge, who has the wisdom and experience to evaluate
such evidence; or it is evaluated by a jury, which is
instructed by the judge on how to evaluate uncorroborated
testimony. Every jury confronted with the testimony of an
in-custody informant is provided with the instruction found
at CALCRIM 336, or something substantively similar, which
reads:
The testimony of an in-custody informant should be viewed
with caution and close scrutiny. In evaluating such
testimony, you should consider the extent to which it may
have been influenced by the receipt of, or expectation of,
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<1>
A comprehensive study of the nation's first 200 DNA
exonerations found that 18% were convicted, at lest in part, on
the basis of informant, jailhouse informant, or cooperating
alleged co-perpetrator testimony. Brandon L. Garrett, Judging
Innocence. 108 Colum. L. Rev. 55, 62 (2008).
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any benefits from the party calling that witness. This does
not mean that you may arbitrarily disregard such testimony,
but you should give it the weight to which you find it to
be entitled in the light of all the evidence in the case.
The requirement of corroboration flies in the face of
common law tradition, which has always accepted the
sufficiency of the testimony of a single, uncorroborated
witness with a few well-defined constitutional or statutory
exceptions, notably treason (because of the seriousness of
the offense); perjury (because falsehood is the gravamen of
the offense); and accomplice testimony (because the
incentive to inculpate the defendant and exculpate oneself
is not merely theoretical). By requiring corroboration
that connects the defendant to the commission of the crime,
and essentially prohibiting the use of another in-custody
witness to provide corroboration, SB 687 places significant
burdens on prosecutors, particularly in proving crimes that
were perpetrated in jails or prisons. Assaults, murders,
and the smuggling of contraband will rarely be witnessed by
correctional facility personnel. These crimes are usually
only discovered in their aftermath. Under such
circumstances, and absent a confession or admission by the
defendant, the only witnesses who can testify to statements
by the defendant will more often than not come within the
definition of an in-custody informant prescribed by SB 687.
This may be the only reliable evidence of guilt if
percipient witnesses refuse to testify or cooperate with
investigators either out of fear of retaliation or from a
general animus against law enforcement.
6. Veto of SB 609(Romero) 2008 and SB 1589(Romero) 2009
SB 609 (Romero) which was identical to this bill was vetoed with
the following message:
This bill would prohibit a court from convicting a
defendant, finding a
special circumstance true, or using a fact in
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aggravation based on the
uncorroborated testimony of an in-custody informant.
This bill would enact a broad solution to a perceived
problem that arises in
very few criminal cases. In-custody informant
testimony is disfavored and
therefore rarely used. When that kind of testimony is
necessary, current
criminal procedures provide adequate safeguards against
its misuse.
Consequently, this bill is unnecessary.
The veto message of SB 1589 was very similar stating:
Since a wrongful conviction can exact a devastating toll
on the
accused and their families, every worthwhile effort
should be made to
avoid their occurrence. Because this bill would not
reduce the
number of wrongful convictions, I am unable to support
it.
In-custody informant testimony is disfavored and
therefore rarely
used. When such testimony is necessary, current rules
of evidence
provide adequate safeguards against its misuse. The
evaluation of
the credibility of a witness has always been uniquely
within the
province of the jury. This bill would usurp the juries'
function by
fixing in statute a rule that all in-custody informants
have lied
before the fact.
Supporters argue that from his message it is clear that the
Governor did not understand the extent of this issue. Editorial
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boards agreed. After the veto of SB 609 and two other bill
sponsored by the Commission on the Fair Administration of
Justice the San Jose Mercury News stated:
ÝF]or the second year, a misguided Schwarzenegger vetoed
modest bills to address primary causes of wrongful
convictions. The bills would have required the police to
tape some jailhouse interrogations and would have put
tighter controls on testimony from jailhouse snitches
and photo lineups. Until there's a governor willing to
confront bad prosecution practices, every Californian
remains at risk. (Editorial: Water, Health Care Bills
Are Still Missing in Action; San Jose Mercury News,
October 18, 2007)
The Sacramento Bee specifically pointed out:
Innocent people in California are more likely to go to
prison for crimes they did not commit, and the guilty
are more likely to escape apprehension. Those are the
potential consequences of Gov. Arnold Schwarzenegger's
vetoes of three common-sense bills.
The bills sought to make our criminal justice system not
just fairer but more effective.
SB 609 by Sen. Gloria Romero, D-Los Angeles, would have
barred prosecutors from using testimony from notoriously
unreliable jailhouse informants unless such testimony
was corroborated. In his veto message, the governor
claimed such testimony is seldom used, but he
conveniently ignored a 1989 scandal in Los Angeles
County when one jailhouse snitch confessed to lying in
more than a dozen cases.
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The governor can claim to be tough on crime, but his
vetoes display his failure to be smart about criminal
justice. (Editorial: Dumb on Crime; Governor Vetoes
Three that Should Be Law, The Sacramento Bee, October
18, 2007)
Fox News.com also criticized the vetoes stating:
In 2006, the commission issued its recommendations.
Three modest, sensible reforms made their way to the
state legislature, and were passed by both the state's
house and senate earlier this year. The reforms were
backed by politicians from both parties. They were
backed by both prosecutors and police officials who
served on the commission. The reforms would added some
formable defenses against wrongful convictions in
California. Naturally, they were opposed by the stae's
police organizations. And so last month, Gov.
Schwarzenegger vetoed all three.
The first recommendation would have required that
prosecutors who use jailhouse "snitches" corroborate
snitch testimony with other evidence. Jailhouse snitches
themselves are convicted felons. They aren't
trustworthy people. What's more, they have a greater
incentive to lie, and to lie to get someone convicted,
than perhaps anyone else a prosecutor could possibly put
on the stand. They want to get out of prison.
A 2004 study by Northwestern University of 111 death row
exonerations since the death penalty was reinstated in
1973 found that the testimony of a jailhouse snitch
played a role in 51 of the wrongful convictions.
Jailhouse snitch testimony becomes particularly
invidious when pared with mandatory minimum sentences.
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The only way someone facing a mandatory minimum sentence
can get out early is to provide information that helps
prosecutors win more convictions. It's an unfortunate
structure of incentives that encourages dishonesty from
informants, and encourages prosecutors to suborn it.
The California commission's recommendation wouldn't have
barred the use of jailhouse informants, as some
activists have recommended. It would only have required
that prosecutors corroborate such testimony with other
sources before using it at trial.
Gov. Schwarzenegger vetoed the bill, arguing that, "When
that kind of testimony is necessary, current criminal
procedures provide adequate safeguards against misuse."
In just six years of operation, the Northern California
Innocence Projects has helped exonerate 20 people in
Northern California alone who were convicted in whole or
in part based on testimony from jailhouse snitches.
(Balko, Radly, Schwarzeneger Vetoes Justice, Fox
News.com, November 5, 2007)
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