BILL ANALYSIS �
AB 1250
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Date of Hearing: April 9, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1250 (Perea) - As Amended: April 4, 2013
As Proposed to be Amended in Committee
SUMMARY : Clarifies the informant privilege applies to
communications between people who call crime stopper
organizations for the purpose of transmittal of that information
to law enforcement.
EXISTING LAW :
1)Provides that all relevant evidence is admissible unless it is
made inadmissible by some constitutional or statutory
provision. (California Evidence Code Section 351.)
2)States that the Right to Truth-in-Evidence constitutional
amendment as relevant evidence shall not be excluded in any
criminal proceeding, including pre-trial and post-trial
conviction motions and hearing, or in any trial or hearing of
a juvenile for a criminal offense, whether heard in juvenile
or adult court. [California Constitution article I Section
28(d).]
3)Provides that in all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have
been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.
(United States Constitution, Amendment 6) [emphasis added]
4)Provides that a public entity has a privilege to refuse to
disclose the identity of an informer if disclosure is against
the public interest because there is a need to preserve the
confidentiality of the informer's identity that outweighs the
need for disclosure to the parties to the action. (California
Evidence Code Section 1041.) This section applies only if
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the information is furnished in confidence by the informer to:
a) A law enforcement officer;
b) A representative of an administrative agency charged
with the administration or enforcement of the law alleged
to be violated; or
c) Any person for the purpose of transmittal to a law
enforcement officer or representative of an administrative
agency.
d) There is no privilege under this section to prevent the
informer from disclosing his identity.
5)States that a married person has a privilege not to testify
against his or her spouse in a criminal or civil action,
irrespective of whether the spouse is a party to the action.
(California Evidence Code Section 970.)
6)Provides that a person, whether a party to an action or not,
who is married or who was formerly married to a particular
spouse, has the privilege to refuse to disclose, and to
prevent another, including an eavesdropper, from disclosing a
confidential communication between the person and the spouse
while they were married. (California Evidence Code Section
980.)
7)States that a patient, has a privilege to refuse to disclose,
and to prevent another from disclosing confidential
communication between patient and physician. (California
Evidence Code Section 994.)
8)Provides that a patient has the privilege to refuse to
disclose, and to prevent another person from disclosing a
confidential communication between the patient and a
psychotherapist. (California Evidence Code Section 1015.)
9)States that a penitent has a privilege to refuse to disclose
and to prevent disclosure of a confidential communication
between the penitent and their cleric. (California Evidence
Code Section 1033.)
10)Provides that a client has a privilege to refuse to disclose
and prevent another from disclosing a confidential
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communication between the client and a lawyer. (California
Evidence Code Section 954.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Law enforcement
relies on tips from people who submit them to Crime Stoppers
organizations to solve crimes. Currently, there is no law to
protect communication between 'tipsters' and Crime Stoppers
organizations. It is essential to protect this information to
ensure a 'tipster' is not at risk of threats or retaliation,
and tips continue to be received."
2)Truth in Evidence : Section 28(d) (Proposition 8) of the
California Constitution established the truth in evidence
rule. It abolished the California Supreme Court's power to
fashion exclusionary rules in criminal cases based on the
California Constitution rather than the United States
Constitution. In re Lance W., (1985) 37 C3d 873. Section
28(d) generally preserves the statutes existing at the time
Proposition 8 was passed by the voters as a basis for
excluding evidence, but provides that statutes passed after
the effective date of Proposition 8 must be enacted by a
two-thirds vote of the membership in each house of the
legislature in order to serve as the basis for excluding
evidence.
3)The Right to Confront and Cross-Examine Witnesses : The Bill
of Rights contains the first ten amendments to the United
States Constitution. The Bill of Rights guarantee personal
freedoms, limit the government's power in judicial and other
proceedings, and reserve some powers to the states and the
public. While originally the amendments applied only to the
federal government, most of their provisions have since been
held to apply to the states by way of the Fourteenth
Amendment. One such right that has been applied to the states
is the right to confront and cross-examine witnesses,
contained in the Sixth Amendment to our Constitution. The
Sixth Amendment reads as follows:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the
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State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense."
(emphasis added)
4)Privileges Generally : California and federal law lay out a
number of scenarios where communications between individuals
are privileged and thereby inadmissible in civil and criminal
proceedings. Society has deemed that it is in the interest of
the greater good that these communications should remain
confidential to foster healthy relationships, mental health,
and honesty. Examples of privilege include communications
between married couples, patients and doctors,
psychotherapists and patients, clerics and penitents, and
attorneys with their clients.
5)Identity of Informer Privilege : Under California law a public
entity has a privilege to refuse to disclose the identity of
an informer if disclosure is against the public interest
because there is a need to preserve the confidentiality of the
informer's identity that outweighs the need for disclosure to
the parties to the action. The disclosure of an informer is
not required when a search is made pursuant to a warrant and
the standard is merely probable cause. Theodor v. Superior
Court (1972) 8 C3d 77.
6)Argument in Support : According to the California State
Sheriffs' Association, "For more than 30 years, crime stopper
organizations have been successful because they allow people
to provide information to law enforcement on an anonymous
basis, which is used to help solve crime, make arrests, and
obtain criminal convictions. These organizations usually have
the policy of not taking any identifying information when the
call is made. However, while a person may reveal his or her
name or reveal other identifying information. Disclosing such
information in court would undermine the purpose of these
organizations, which is to let people report crimes
anonymously without the threat or fear of retaliation."
7)Argument in Opposition: According to the California Public
Defenders Association, "The California Public Defenders
Association (CPDA), a statewide organization of public
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defenders, private defense counsel, and investigators, regrets
to inform you of its opposition to AB 1250 by Assembly Member
Henry Perea.
"This bill would add Evidence Code section 1064 (Crime
stoppers privilege) which would provide that a person shall
not be required to disclose a tipster's identifying
information or records. A criminal defendant would be allowed
to petition the court for an in camera review of a privileged
communication, and any records, documentary evidence,
opinions, or decisions relating to that communication, on the
basis of certain facts alleged in the petition. The court
would be authorized to order production and disclosure to the
petitioner's attorney, or private investigator if the
defendant is pro per, as it deems appropriate, so long as
identifying information is not disclosed.
"AB 1250 is duplicative of existing Evidence Code Section 1041
(Privilege for Identity of Informer). However, unlike
Evidence Code Section 1041 it utterly fails to provide the
careful balancing of the public interest's in preserving the
confidentially of an informant's identity and a criminal
defendant's right to a fair trial. AB 1250 has neither the
procedures already embodied in Evidence Code Sections 1041 and
1042 nor the case law interpreting those procedures.
"By creating a "Crime stoppers privilege" this bill seeks to
create an end run around existing Evidence Code Section 1041
and case law interpreting and applying Evidence Code Section
1041.
"Evidence Code section 1041 provides that an informant's
identity is protected if "the information is furnished in
confidence to a law enforcement officer;" a representative of
an administrative agency charged with ? enforcement of the law
alleged to be violated; or 'any person for the purpose of
transmittal' to a law enforcement officer or administrative
agency.
"Informants who call crime stoppers are already protected
under the clause 'any person for the purpose of transmittal'
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to a law enforcement or administrative officer.
"Courts have over 40 years experience interpreting Evidence
Code Section 1041, which was enacted in 1965. In a criminal
case when a party demands disclosure of the informant's
identity, the court holds a hearing to determine whether the
defense has shown a reasonable possibility that the anonymous
informant could give evidence on the issue of guilt that might
result in the exoneration of defendant. (Bowens v. Superior
Court (1975) 47 CA3d 127.)
"Evidence Code Section 1042(d) provides that at the hearing
regarding whether the informant is a material witness on the
issue of guilt, if the person who is authorized to claim the
privilege refuses to answer questions which would tend to
disclose the informant's identify, the prosecutor may request
an in camera hearing.
" 'The court shall not order disclosure, nor strike the
testimony of the witness who invokes the privilege, nor
dismiss the criminal proceeding' unless based on the hearings
in open court and in camera 'the court concludes that there is
a reasonable probability that nondisclosure might deprive the
defendant of a fair trial.'
"AB 1250 is unnecessary as the legislature and the courts have
already established protocols for granting privilege to
informants, which strike an appropriate balance between the
public interest in preserving the confidentially of an
informant's identity and a criminal defendant's right to a
fair trial. AB 1250 unfortunately, fails to strike any such
balance. Worse still, unlike existing law, this bill prohibits
the judge from ever disclosing the confidential informant
" '(2) If the court determines, pursuant to paragraph (1) that
any of the documents relating to the privileged communication
may be relevant, it may order their production and disclosure
to the petitioner's attorney as the court deems appropriate,
so long as identifying information is not disclosed.' (p. 3,
lines 7-11.)
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"Under existing law the judge can make a determination that
the informant is a material witness and that disclosing the
identity is necessary for the defendant to receive a fair
trial.
"Then the agency asserting the privilege, usually through a
police officer, and the prosecution determine if they will
disclose. If they elect not to disclose, then and only then,
the court has the option to strike the testimony or dismiss.
(Evidence Code sections 1041 and 1042.)
"Under the proposed Crime stoppers Privilege pursuant to AB
1250, the informant's confidentiality would always trump the
defendant's right to a fair trial."
8)Prior Legislation : SB 1795 (Leslie) 1997-98 Legislative
Session. This bill would have created a substantially similar
statutory scheme for crime stopper privilege. SB 1795 failed
in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Agri-Valley Irrigation, Inc.
California State Sheriff's Association
Fresno Police Officers' Association
Peace Officers Research Association of California
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
AB 1250
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