BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 687|
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THIRD READING
Bill No: SB 687
Author: Leno (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/5/11
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SUBJECT : Criminal procedure: informants
SOURCE : California Public Defenders Association
DIGEST : This bill provides that a defendant cannot be
convicted based on the uncorroborated testimony of an
in-custody informant.
ANALYSIS : 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 Section 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
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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 were held within a city or county jail,
state penal institution, or correctional institution.
Prior Legislation
SB 609 (Romero, 2007), 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 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.
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SB 1589 (Romero, 2008), which was also vetoed, had a
similar veto message:
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/5/11)
California Public Defenders Association (source)
American Civil Liberties Union
California Attorneys for Criminal Justice
Death Penalty Focus
Friends Committee on Legislation of California
Los Angeles County District Attorney
Northern California Innocence Project
San Francisco County District Attorney
OPPOSITION : (Verified 4/5/11)
California District Attorneys Association
California State Sheriffs' Association
Peace Officers Research Association of California
ARGUMENTS IN 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
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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 inaccurate testimony. What is more,
wrongful convictions, including those resulting from the
testimony of uncorroborated jailhouse informants, erodes
the public's faith in the fair administration of justice."
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
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report by adopting policy guidelines to strictly control
the use of jailhouse informants as witnesses.
"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
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
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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."
ARGUMENTS IN 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, 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
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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."
RJG:mw 4/6/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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