BILL ANALYSIS Ó
SB 687
Page 1
Date of Hearing: June 14, 2011
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 687 (Leno) - As Introduced: February 18, 2011
SUMMARY : Provides that a judge or jury may not enter a judgment
of conviction upon a defendant, find a special circumstance
true, or use a fact in aggravation based solely on the
uncorroborated testimony of an in-custody informant, as defined.
Specifically, this bill :
1)Defines an "in-custody informant" as a person, other than
codefendant, percipient witness, accomplice, or coconspirator,
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.
2)States that corroboration is not sufficient if it merely shows
the commission of the offense or the special circumstance or
the circumstance in aggravation.
3)States that corroboration 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 evidence that the in-custody informant has
not communicated with another in-custody informant on the
subject of the testimony.
EXISTING LAW :
1)Provides that a conviction cannot be had upon the testimony of
an accomplice unless that testimony is corroborated by such
other evidence which tends to connect the defendant with the
commission of the offense and that corroboration is not
sufficient if it merely shows the commission of the offense or
the circumstances thereof. (Penal Code Section 1111.)
2)Defines an "accomplice" as one who is liable to prosecution
for the identical offense charged against the defendant on
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trial in the cause in which the testimony of the accomplice is
given. (Penal Code Section 1111.)
3)Defines an "in-custody informant" as a person, other than a
codefendant, percipient witness, accomplice, or coconspirator
whose testimony is based upon statements made by the defendant
while both the defendant and the informant are held within a
correctional institution. ÝPenal Code Section 1127a(a).]
4)States that in any criminal trial or proceeding in which an
in-custody informant testifies as a witness, upon the request
of a party, the court shall instruct the jury as follows:
"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."
ÝPenal Code Section 1127a(b).]
5)States that when the prosecution calls an in-custody informant
as a witness in any criminal trial, contemporaneous with the
calling of that witness, the prosecution shall file with the
court a written statement setting out any and all
consideration promised to, or received by, the in-custody
informant. The statement filed with the court shall not
expand or limit the defendant's right to discover information
that is otherwise provided by law. The statement shall be
provided to the defendant or the defendant's attorney prior to
trial and the information contained in the statement shall be
subject to rules of evidence. ÝPenal Code Section 1127a(c).]
6)States that for purposes of Penal Code Section 1127a(c)
"consideration" is defined as any plea bargain, bail
consideration, reduction or modification of sentence, or any
other leniency, benefit, immunity, financial assistance,
reward, or amelioration of current or future conditions of
incarceration in return for, or in connection with, the
informant's testimony in the criminal proceeding in which the
prosecutor intends to call him or her as a witness. ÝPenal
Code Section 1127a(d).]
7)States that no law enforcement or correctional official shall
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give, offer, or promise to give any monetary payment in excess
of $50 in return for an in-custody informant's testimony in
any criminal proceeding. This does not include payments
incidental to the informant's testimony such as expenses
incurred for witness or immediate family relocation, lodging,
housing, meals, phone calls, travel, or witness fees
authorized by law. ÝPenal Code Section 4001.1(a).]
8)Prohibits a law enforcement agency and an in-custody informant
acting as an agent for the agency from taking some action,
beyond merely listening to statements of a defendant, that is
deliberately designed to elicit incriminating remarks. ÝPenal
Code section 4001.1(b).]
9)Provides that the prosecution shall make a good faith attempt
to notify any victim of a crime which was committed by, or is
alleged to have been committed by, an in-custody informant
within a reasonable time before the in-custody informant is
called to testify. The notice shall include information
concerning the prosecution's intention to offer the in-custody
informant a modification or reduction in sentence or dismissal
of the case or early parole in exchange for the in-custody
informant's testimony in another case. The notification or
attempt to notify the victim shall be made prior to the
commencement of the trial in which the in-custody informant is
to testify where the intention to call him or her is known at
that time, but in no case shall the notice be made later than
the time the in-custody informant is called to the stand.
(Penal Code Section 1191.25.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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
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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/1989-1
990 %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.
"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
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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 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)Background : According to the background provided by the
author, " Given the well documented conflict of interest
between prosecutors who wish to secure convictions and
informants who wish to secure leniency through cooperation,
what safeguards are in place to ensure the truthfulness and
accuracy of the testimony presented at criminal trials? What
measures are in place to keep the system honest?
Unfortunately, California law is sadly lacking in this regard.
"California law provides no disincentive for inmates to
volunteer information in the hope that they will be rewarded
with reduced charges, better confinement, or another form of
leniency. Informants, who are themselves in custody or facing
criminal prosecution, are allowed to provide testimony to a
judge or jury without any other evidence that independently
connects the defendant with the commission of the offense.
"Instead, current law requires, upon the request of a party,
that the judge instruct the jury in any case in which an
in-custody informant testifies that the testimony should be
viewed with caution and close scrutiny and the jury should
consider the extent to which it may have been influenced by
the receipt of, or expectation of, any benefits from the party
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calling that witness. In addition, Penal Code Section 1127a
requires the prosecutor to file a written statement with the
court, contemporaneous with the calling of an in-custody
informant as a witness in any criminal trial, setting out any
and all consideration promised to, or received by the
in-custody informant. Finally, monetary payments to in-custody
informants are capped at $50 by California Penal Code Section
4001.1.
"While this is an excellent start, the protections currently in
place have proven starkly inadequate in safeguarding against
unreliable testimony by witnesses with powerful incentives to
lie. Empirical data demonstrates how difficult it is to screen
out unreliable informant testimony. In a sample of recent
exonerations reviewed by San Francisco Magazine, 20% of the
courts cited false informant testimony as a reason for
reversal. While the total number of cases in which perjured
informant witness testimony has led to wrongful convictions is
impossible to determine, scholars generally agree that the
number is very high.
"Part of the reason may be that informant testimony is highly
prejudicial to juries. According to Boston College Law
Professor Robert Bloom, juries tend to give weight to the
evidence of a defendant's confession even after warnings as to
the credibility of the jailhouse informant. Furthermore, the
Justice Project's policy review of the use of informant
testimony notes how difficult it is for defense attorneys to
"un-toll the bell." Even in the face of effective
cross-examination and limiting instructions, when informant
evidence is presented on behalf of the state, the authority of
the entity providing the evidence and the momentum to convict
makes it almost impossible for jurors not to assume witness
credibility. Clearly, cautionary jury instructions should be
given by courts as follow-through measures to reinforce the
dependability of the determinations made by judges. They
should not, however, be deemed a solution to informant perjury
in and of themselves.
"SB 687 is a high-yielding safeguard that can be implemented
immediately to ensure that the use of cooperating witness
testimony does not undermine the fairness and accuracy of
criminal trials. The policy improvement encompassed by SB 687
has been the subject of numerous expert reviews and is
considered a best practice for enhancing the evidentiary value
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of a highly unreliable brand of cooperating witness testimony.
In a 2005 resolution, the American Bar Association urged
"federal, state, local, and territorial governments to reduce
the risk of convicting the innocent, while increasing the
likelihood of convicting the guilty, by ensuring that no
prosecution should occur based solely upon uncorroborated
jailhouse informant testimony.
"SB 687 heeds this call and strikes a delicate balance that
allows prosecutors to maintain the use of informant testimony
as an important tool at their disposal, while offering a
straightforward, pragmatic safeguard to counterbalance the
inherent unreliability when used in practice. Perhaps Timothy
Atkins, a recent exonerree put it best, "I'm not the first guy
who went to prison because someone lied, and I won't be the
last. But it's wrong, and something should be done to try to
prevent this because no one can give me back all the years I
lost." Unless the Legislature takes action to ensure a higher
level of scrutiny when it comes to informant testimony,
California's justice system will continue to be crippled by
conflicts of interest and diminished public trust."
3)Report and Recommendation by CCFAJ : The California Commission
on the Fair Administration of Justice (CCFAJ) was established
in 2006 to review the administration of criminal justice in
California and make recommendations on safeguards to ensure
accuracy and fairness in within the criminal justice system.
In preparing their report, CCFAJ received information from
professors, district attorneys, public defenders, and people
who were convicted in part due to an in-custody informant's
testimony then later exonerated.
On September 20, 2006, CCFAJ conducted a public hearing on the
issue of informant testimony and then issued a report with its
findings and recommendations. Mr. Michael Laurence, the
Director of the California Habeas Corpus Resource Center,
explained to CCFAJ the reason for the high prevalence of the
use of arrested or charged informants in capital cases.
According to Laurence, "while Ýinformant's testimony] 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 the
defendant eligible for the death penalty, or to provide
evidence to persuade the jury to select death as the
appropriate penalty. (California Commission on the Fair
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Administration of Justice, "Report and Recommendations
Regarding Informant Testimony," pp. 1-2. www.CCFAJ.org.)
According to State Public Defender Michael Hersek, 17 of the
117 death penalty appeals currently pending in his office
featured testimony by in-custody informants and another six
included testimony by informants in constructive custody,
which raises concerns over the reliability of the testimony of
informant witnesses. (Id.)
At the hearing, CCFAJ took testimony on the Los Angeles District
Attorney's policies regarding the use of informants' testimony
and undertook to ascertain the policies of other district
attorney offices throughout California. The report states
that four of the five largest counties had written office
policies similar to Los Angeles County's policies. Some
offices did not have written policies but required supervisory
approval prior to the use of an in-custody informant's
testimony. Some offices had policies requiring maintenance of
a central file of all informant information. CCFAJ learned
from these district attorney offices that the use of the
testimony of in-custody informants is rarely approved. (Id.
p. 4.)
CCFAJ concluded that the testimony of in-custody informants
potentially presents even greater risks than the testimony of
accomplices, whose testimony currently requires corroboration
prior to its admission as evidence in a criminal trial. (Id.
p. 6.) The motivation for testimony by in-custody informants
is the expectation of some reward such as a reduction of
charges, eligibility for bail, leniency of sentencing, or
better conditions of confinement. (Id. p. 1.) CCFAJ's report
recommended that a statutory requirement of corroboration
similar to the requirement for accomplice testimony be enacted
for testimony by an in-custody informant. (Id. p. 6.)
4)Corroboration as Defined and Required in Accomplice Testimony
Case Law : As accomplice testimony has required corroboration
in California since the inception of the Penal Code, a large
body of case law has been developed over the years. This bill
applies the same rules regarding corroboration to in-custody
informants; therefore, an examination of the corroboration
required in accomplice cases may be informative.
a) The corroboration of accomplice testimony is sufficient
if it tends to connect a defendant with the commission of
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the crime in such a manner as reasonably to satisfy a jury
that the accomplice is telling the truth. ÝPeople v.
Warner (1969) 270 Cal.App.2d 900, 911.]
b) The testimony of one accomplice cannot be corroborated
by that of another accomplice. ÝPeople v. Creegan (1898)
121 Cal. 554, 557; People v. Dailey (1960) 179 Cal.App.2d
482, 486; and People v. Marshall (1969) 273 Cal App 2d 423,
426.]
c) There is no advisory discretion in the judge, but a
conviction on the uncorroborated testimony of an accomplice
is absolutely prohibited. ÝUnited States v. Hinz
(C.C.N.D.Ca. 1888) 35 F. 272, 278.] The court has no
discretion in the application of this section, but is bound
to apply it to all cases where an accomplice appears as a
witness and the prosecution's case depends solely upon his
uncorroborated testimony. ÝPeople v. Robbins (1915) 171
Cal. 466, 469.]
d) Accomplice testimony in juvenile court proceedings is
not subject to the corroboration requirements of Penal Code
Section 1111. ÝIn re D.L. (1975) 46 Cal.App.3d 65, 73.] A
finding of wardship pursuant to Welfare and Institutions
Code Section 602 does not constitute a conviction within
the meaning of Penal Code Section 1111 and, as a result,
does not require mandatory application in juvenile
proceedings. ÝIn re E.L.B. (1985) 172 Cal.App.3d 780,
783-84.]
e) Defendants can be held on arraignment and at a
preliminary hearing or indictment based on uncorroborated
testimony of an accomplice, since the statute prohibits
only a conviction based solely on such testimony; findings
at such procedures are not convictions. ÝSee People v.
McRae (1947) 31 Cal.2d 184, 187; and People v. Singer
(1963) 217 Cal.App.2d 743, 757.]
5)Wrongful Convictions Can Be Costly : Wrongful convictions
based on false testimony provided by in-custody informants
have led to expensive lawsuits against local governments. A
recent news, a man who was wrongly convicted of murder based
largely on the testimony of an in-custody informant who
claimed that the man confessed to the murder while they were
both in jail. A judge overturned the conviction more than 24
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years later because of concerns over the in-custody informant
Edward Fink's credibility and because prosecutors did not tell
Thomas Goldstein's defense attorney that they had made a deal
with Fink in a separate case. Goldstein sued the City of Long
Beach and the case settled for $8 million. ÝBlankstein, Long
Beach Agrees to Pay $8 Million in Wrongful Murder Conviction
(August 12, 2010) Los Angeles Times found at
.] This article illustrates that while not every
exoneree will engage in a lawsuit, just one lawsuit can cost
cities and counties millions of dollars.
6)Impact on Prosecution of Crimes Perpetrated in Jails and
Prisons : This bill will not significantly impact the
prosecution of crimes perpetrated by inmates within jails and
prisons. Whether the crime is assault, murder, or smuggling,
an in-custody informant's testimony may be useful in
prosecution of the crime, but it is less reliable than other
sources that may be available such as the testimony of a
percipient witness or co-conspirator, or the footage from
surveillance cameras. Percipient witnesses, or eye witnesses,
are specifically listed in this bill as a witness that is not
considered an "in-custody informant" and therefore would not
require corroboration. Additionally, the testimony of a
percipient witness could serve as corroboration for an
in-custody informant's testimony.
7)Governor's Veto Messages of Prior Legislation : In his veto
message of SB 1589 (Romero) of the 2007-08 Legislative
Session, Governor Schwarzenegger stated, "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. For
these reasons, I am unable to sign this bill."
In his veto message of SB 609 (Romero) of the 2007-08
Legislative Session, Governor Schwarzenegger stated, "This
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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."
8)Arguments in Support : According to the California Public
Defenders Association , "SB 687 seeks to provide that a court
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. Such in-custody
informants, commonly referred to as a 'jailhouse snitches,'
provide incriminating testimony against a suspect, frequently
one with whom they share a jail or prison cell. Often such a
person feels he or she has very little to lose and everything
to gain. While the utilization of cooperating witnesses in
order to obtain evidence of criminal activity is an important
tool, SB 687 recognizes a motive to fabricate a testimony
inherent in a system where in-custody informants are often
rewarded for their testimony. In-custody informants often
expect some kind of reward, whether reduction in charges,
eligibility for bail, leniency in sentencing, or access to
better confinement conditions. Justice is undermined when
convictions are based on unreliable and inaccurate testimony.
Wrongful convictions, including those resulting from the
testimony of uncorroborated jailhouse snitches erode the
public's faith in the fair administration of justice and
result in innocent people being convicted and sentenced to
long prison sentences for crimes they did not commit."
9)Arguments in Opposition : According to California District
Attorneys Association , "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
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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."
10)Prior Legislation :
a) SB 1589 (Romero), of the 2007-08 Legislative Session,
was identical to this bill. SB 1589 was vetoed.
b) SB 609 (Romero), of the 2007-08 Legislative Session, was
identical to this bill. SB 609 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defender's Association (Sponsor)
American Civil Liberties Union (Co-Sponsor)
California Attorneys for Criminal Justice (Co-Sponsor)
Death Penalty Focus
Friends Committee on Legislation of California
Los Angeles County District Attorney's Office
Northern California Innocence Project
San Francisco District Attorney's Office
One private individual
Opposition
California District Attorneys Association
California State Sheriffs Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
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