BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1250 (Perea) 0
As Amended April 18, 2013
Hearing date: June 4, 2013
Evidence Code
MK:mc
PRIVILEGED COMMUNICATIONS:
OFFICIAL INFORMATION: IDENTITY OF INFORMER
HISTORY
Source: Central Valley Crime Stoppers; California Crime
Stoppers Association; Stanislaus Area Crime Stoppers
Program
Prior Legislation: SB 1795 (Leslie) - failed Senate Public
Safety 1998
Support: Riverside Sheriffs' Association; Los Angeles Police
Protective League; Association for Los Angeles Deputy
Sheriffs; Fresno Police Department; Agri-Valley
Irrigation, Inc.; Central Valley Community Bank; Madera
County Sheriff; California State Sheriffs'
Association; Peace Officers Research Association of
California; Fresno County Sheriff; Fresno Police
Officers' Association; Fresno Deputy Sheriff's
Association
Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
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KEY ISSUE
SHOULD THE INFORMANT PRIVILEGE APPLY TO COMMUNICATIONS BETWEEN
PEOPLE WHO CALL A CRIME STOPPER ORGANIZATION FOR THE PURPOSE OF
TRANSMITTAL OF THE INFORMATION TO LAW ENFORCEMENT?
PURPOSE
The purpose of this bill is to clarify that 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 provides that all relevant evidence is admissible
unless it is made inadmissible by some constitutional or
statutory provision. (Evidence Code � 351.)
Existing law 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, art. I, �
28(d).)
Existing law 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
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defense. (United States Constitution, 6th Amend.)
Existing law 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.
(Evidence Code � 970.)
Existing law 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. (Evidence Code � 980.)
Existing law states that a patient has a privilege to refuse to
disclose, and to prevent another from disclosing confidential
communication between patient and physician. (Evidence Code �
994.)
Existing law 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. (Evidence Code � 1015.)
Existing law 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. (Evidence
Code � 1033.)
Existing law provides that a client has a privilege to refuse to
disclose and prevent another from disclosing a confidential
communication between the client and a lawyer. (Evidence Code
� 954.)
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Existing law 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 of a need to preserve the
confidentiality of the informer's identity that outweighs the
need for disclosure to the parties to the action. (Evidence
Code � 1041.)
Existing law provides that Evidence Code section 1041 applies
only if the information is furnished in confidence by the
informer to:
a law enforcement officer;
a representative of an administrative agency charged
with the administration or enforcement of the law alleged
to be violated; or
any person for the purpose of transmittal to a law
enforcement officer or representative of an administrative
agency.
This bill provides that "any person for the purpose of
transmittal to a law enforcement officer" includes a volunteer
or employee of a crime stopper organization.
Existing law provides there is no privilege under Evidence Code
section 1041 to prevent the informer from disclosing his
identity.
This bill provides that the privilege described shall not be
construed to prevent the informer from disclosing his or her
identity.
This bill provides that "crime stopper organization" means a
private, nonprofit organization that accepts and expands
donations used to reward persons who report to the organization
information concerning the alleged criminal activity, and
forward the information to the appropriate law enforcement
agency.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
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continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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For the past 30 years, Crime Stoppers has become the
most successful organization to help solve and fight
crimes by providing helpful information or tips to law
enforcement officials on an anonymous basis. The
promise of anonymity is a necessity for all informants
as well as law enforcement. Crime stopper
organizations have adopted a policy of not taking
people's names when the call is made, however,
occasionally a person may reveal his or her name or
reveal other identifying information such as "my
ex-husband Joe" or "I saw my neighbor." Crime Stoppers
are concerned that they could be forced to reveal such
identifying information. Revealing such information
would defeat the purpose of their organization, which
is to allow people to call in "tips" anonymously and
therefore without concern that they may face
retaliation.
If the tip sheets, e-mails, text messages or records of
the Crime Stopper organization are obtained by a
criminal defendant in his or her criminal case through
the use of a subpoena process, there is a likelihood
that defendant may be able to identify the "tipster"
based upon the information the "tipster" provided to
the Crime Stopper organization. When the Crime Stopper
program obtains "tip information" it forwards it to law
enforcement who "works the tip" and investigates any
alleged criminal activity identified in the tip and
locates any wanted persons whose whereabouts may be
known to the tipster. It is imperative these "tips" be
covered under the informant's privilege to maintain the
anonymity of these "tipsters" and prohibit and preclude
individuals from attempting to identify the "tipsters"
identity based upon the information they provided.
AB 1250 expands the definition of "any person" in
Evidence Code Section 1041 to include "any volunteer or
Crime-stopper organization" so that any tip information
provided to Crime stoppers or any private, non-profit
volunteer which is forwarded to a law enforcement
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agency will be covered by the privilege. As a result,
both the "tip" itself and all records or documents of
the tip would be protected under the privilege.
2. Confidentiality of Informer
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 in the interest of justice. The privilege
applies only if the information was given in confidence to: a
law enforcement officer; a representation of an administrative
agency charged with the enforcement of the law alleged to be
violated; or, any person for transmittal to a law enforcement
officer or administrative agency.
This bill provides that included in the definition of "person"
is a "crime stopper organization." Therefore, people can remain
confidential when they give information to a crime stopper
organization which then provides the information to the
appropriate law enforcement agency.
3. Support
A number of supporters of this bill state:
For the past 30 years, Crime Stoppers has become the
most successful organization to help solve and fight
crimes by providing helpful information or tips to law
enforcement officials on an anonymous basis. The
promise of anonymity is a necessity for all informants
as well as law enforcement. Crime stopper
organizations have adopted a policy of not taking
people's names when the call is made, however,
occasionally a person may reveal his or her name or
reveal other identifying information such as "my
ex-husband Joe" or "I saw my neighbor." Crime stoppers
are concerned that they could be forced to reveal such
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identifying information in court documents. Revealing
such information would defeat the purpose of their
organization, which is to allow people to call in
"tips" anonymously and therefore without concern that
they may face retaliation.
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