BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 687| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 687 Page 2 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. CONTINUED SB 687 Page 3 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 4/12/11) 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 4/12/11) 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 CONTINUED SB 687 Page 4 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 CONTINUED SB 687 Page 5 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 CONTINUED SB 687 Page 6 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 CONTINUED SB 687 Page 7 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 4/12/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED