BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 569 (Lieu)
As Introduced February 22, 2013
Hearing date: April 9, 2013
Penal Code; Welfare and Institutions Code
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INTERROGATION:
ELECTRONIC RECORDATION
HISTORY
Source: American Civil Liberties Union
California Public Defenders Association
Prior Legislation:SB 1300 (Alquist) - 2012 held in Senate
Appropriations
SB 1590 (Alquist) - 2008 held Senate
Appropriations
SB 511 (Alquist) - 2007 Vetoed
SB 171 (Alquist) - 2006 Vetoed
AB 161 (Dymally) - As introduced 2003
Support: National Association of Social Workers - California
Chapter
Opposition:Juvenile Court Judges of California
KEY ISSUES
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SHOULD THE LAW REQUIRE THAT THE CUSTODIAL INTERROGATION OF A
MINOR BE ELECTRONICALLY RECORDED WHEN THE MINOR IS CHARGED WITH
SPECIFIED OFFENSES?
SHOULD THE LAW REQUIRE MONITORING BY THE JUDICIAL COUNCIL AND
THE DEPARTMENT OF JUSTICE OF ELECTRONIC RECORDING OF THE
INTERROGATIONS?
PURPOSE
The purpose of this bill is to require that the custodial
interrogation of a minor be electronically recorded when the
minor is charged with specific offenses and to set forth
exceptions and remedies to that requirement.
The Fifth Amendment of the Federal Constitution provides in
pertinent part that "No person shall?be compelled in any
criminal case to be a witness against himself?."
The U.S. Supreme Court in Miranda v. Arizona (1966) 384 U.S.
436, held that the Fifth Amendment privilege may be invoked
during a custodial interrogation. To protect the privilege, when
a suspect invokes the right to remain silent or the right to an
attorney, all questioning must cease. The only exceptions to
this rule are to allow officers to question when reasonably
necessary to protect the public safety or to obtain
non-incriminating booking information.
Existing law creates the Commission on Peace Officer Standards
and Training (POST) and provides that the commission shall
adopt, and may from time to time amend, rules establishing
minimum standards relating to physical, mental, and moral
fitness that shall govern the recruitment of peace officers.
(Penal Code § 13510)
Existing law provides that POST shall prepare guidelines
establishing standard procedures which may be followed by police
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agencies and prosecutors in interviewing minor witnesses. (Penal
Code § 13517.5)
Existing law provides that notwithstanding provisions
prohibiting eavesdropping, any district attorney, or any
assistant, deputy or investigator of the Attorney General or any
district attorney any officer of the California Highway Patrol,
any chief of police or city and county, any sheriff,
undersheriff or deputy sheriff regularly employed and paid in
that capacity by a county, police officer of the County of Los
Angeles, or any person acting pursuant to the direction of one
of these law enforcement officers acting within the scope of his
or her authority, from overhearing or recording any
communication?(Penal Code § 633)
Existing law generally provides a statutory framework for
remanding cases in the juvenile court to adult criminal court.
(WIC § 707.) Depending upon the age of the minor, their offense
history, and the alleged offense, a minor may be ineligible for
juvenile court by statute (WIC § 602(b)); a minor may be subject
to prosecution in criminal court at the discretion of the
prosecutor (WIC § 707(d)); or a minor may be subject to remand
to adult criminal court upon a finding by the juvenile court
that the minor is unfit to be dealt with under juvenile court
law (WIC § 707.)
Existing law sets forth a list of thirty offense categories
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commonly referred to as "707(b) offenses."<1> This list of
offenses is a cross-reference which generally applies as
follows:
Prosecutors have the discretion to file an accusatory
pleading directly in adult court against any minor 16 years
of age or older who is accused of committing an offense
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<1> WIC section 707(b) offenses are the following: (1) Murder;
(2) Arson, as specified; (3) Robbery; (4) Rape with force or
violence or threat of great bodily harm; (5) Sodomy by force,
violence, duress, menace, or threat of great bodily harm; (6)
Lewd or lascivious act with a child under 14, as specified; (7)
Oral copulation by force, violence, duress, menace, or threat of
great bodily harm; (8) forcible sexual penetration, as
specified; (9) Kidnapping for ransom; (10) Kidnapping for
purpose of robbery; (11) Kidnapping with bodily harm; (12)
Attempted murder; (13) Assault with a firearm or destructive
device; (14) Assault by any means of force likely to produce
great bodily injury; (15) Discharge of a firearm into an
inhabited or occupied building; (16) Specified crimes against
older or physically disabled persons, as specified; (17)
Specified firearm offenses; (18) Any felony offense in which the
minor personally used a weapon, as specified; (19) specified
felonies involving victim intimidation; (20) Manufacturing,
compounding, or selling one-half ounce or more of any salt or
solution of a controlled substance, as specified; (21) Any
violent felony, as specified; (22) Escape, by the use of force
or violence, from any county juvenile hall, home, ranch, camp,
or forestry camp, as specified, where great bodily injury is
intentionally inflicted upon an employee of the juvenile
facility during the commission of the escape. (23) Torture, as
specified; (24) Aggravated mayhem, as specified; (25)
Carjacking, as specified, while armed with a dangerous or deadly
weapon. (26) Kidnapping, as specified; (27) Kidnapping relating
to carjacking, as specified; (28) specified offenses involving
firearms in vehicles; (29) specified crimes involving explosive
devices; and (30) Voluntary manslaughter, as specified.
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enumerated in 707(b);<2>
Prosecutors have the discretion to file an accusatory
pleading directly in adult court against any minor 14 years
of age or older where any of the following circumstances
apply:
o The minor is alleged to have committed an offense
that if committed by an adult would be punishable by
death or imprisonment in the state prison for life.
o The minor is alleged to have personally used a
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<2> This prosecutorial discretion is limited by WIC section
602, which provides that certain crimes alleged to be committed
by minors 14 years of age or older can only be tried in adult
criminal court.
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firearm during the commission or attempted commission of
a felony, as specified;
o The minor is alleged to have committed an offense
listed in WIC section 707(b) in which any one or more of
the following circumstances apply:
o The minor has previously been found to be
a delinquent ward of the court by reason of a WIC
section 707(b) offense;
o The offense was committed for the benefit
of, at the direction of, or in association with any
criminal street gang, as specified, with the
specific intent to promote, further, or assist in
criminal conduct by gang members.
o The offense was committed for the purpose
of intimidating or interfering with any other
person's free exercise or enjoyment of a right
secured to him or her by the Constitution or laws of
this state or by the Constitution or laws of the
United States and because of the other person's
race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or
because the minor perceives that the other person
has one or more of those characteristics, as
specified;
o The victim of the offense was 65 years of
age or older, or blind, deaf, quadriplegic,
paraplegic, developmentally disabled, or confined to
a wheelchair, and that disability was known or
reasonably should have been known to the minor at
the time of the commission of the offense.
Prosecutors have the discretion to file an accusatory
pleading directly in adult court against any minor 16 years
of age or older who is accused of committing one or more of
the following offenses, if the minor has previously been
found to be a delinquent ward of the court by reason of the
violation of a felony offense, when he or she was 14 years
of age or older:
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o A felony offense in which it is alleged that the
victim of the offense was 65 years of age or older, or
blind, deaf, quadriplegic, paraplegic, developmentally
disabled, or confined to a wheelchair, and that
disability was known or reasonably should have been known
to the minor at the time of the commission of the
offense.
o A felony offense committed for the purposes of
intimidating or interfering with any other person's free
exercise or enjoyment of a right secured to him or her by
the Constitution or laws of this state or by the
Constitution or laws of the United States and because of
the other person's race, color, religion, ancestry,
national origin, disability, gender, or sexual
orientation, or because the minor perceived that the
other person had one or more of those characteristics, as
specified.
o The offense was committed for the benefit of, at the
direction of, or in association with any criminal street
gang as specified. (WIC § 707(d).)
Where the prosecutor elects to not prosecute a minor in
adult court pursuant to the direct filing provisions
described above and the minor subsequently is found to be a
delinquent ward of the court, current law requires that the
"the minor shall be committed to placement in a juvenile
hall, ranch camp, forestry camp, boot camp, or secure
juvenile home pursuant to Section 730, or in any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities." (WIC §
707(d)(5).)
This bill provides that a custodial interrogation of a minor who
is suspected of committed a WIC 707(b) offense shall be
electronically recorded in its entirety.
This bill provides that a statement that is electronically
recorded as required creates a rebuttable presumption that the
electronically recorded statement was, in fact, given and was
accurately recorded by the prosecution's witnesses, provided the
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electronic recording was made of the custodial interrogation in
its entirety and the statement is otherwise admissible.
This bill provides that the requirement for the electronic
recordation of a custodial interrogation pursuant to this
section shall not apply under any of the following
circumstances:
Electronic recording is not feasible because of exigent
circumstance. The exigent circumstances shall be recorded
in the police report.
The person to be interrogated states that he or she will
speak to a law enforcement officer only if the
interrogation is not electronically recorded. If feasible,
that statement shall be electronically recorded. The
requirement also does not apply if the person being
interrogated indicates during interrogations that he or she
will not participate in further interrogation unless
electronic recording ceases.
The custodial interrogation took place in another
jurisdiction and was conducted by law enforcement officers
of that jurisdiction in compliance with the law of that
jurisdiction, unless the interrogation was conducted with
the intent to avoid the requirements of this section.
The custodial interrogation took place in another
jurisdiction and was conducted by law enforcement officers
of that jurisdiction in compliance with the law of that
jurisdiction, unless the interrogation was conducted with
intent to avoid the requirements of this section.
The interrogation occurs when no law enforcement officer
conducting the interrogation has knowledge of facts and
circumstances that would lead an officer to reasonably
believe that the individual being interrogated may have
committed a WIC 707 (b) offense. If during a custodial
interrogation, the individual reveals the facts and
circumstances giving the officer reason to believe a WIC
707b offense has been committed, continued interrogation
concerning that offense shall be electronically recorded.
A law enforcement officer conducting the interrogation
or the officer's superior reasonably believes that
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electronic recording would disclose the identity of a
confidential informant or jeopardize the safety of an
officer, the individual being interrogated, or another
individual. An explanation of the circumstances shall be
recorded in the police report.
A law enforcement officer conduction the interrogation
or the officer's superior reasonably believes that
electronic recording would disclose the identity of a
confidential informant or jeopardize the safety of an
officer, the individual being interrogated, or another
individual. An explanation of the circumstances shall be
recorded in the police report.
The failure to create an electronic recording of the
entire custodial interrogation was the result of a
malfunction of the recording device, despite reasonable
maintenance of the equipment, and timely repair or
replacement was not feasible.
The questions presented to a person by law enforcement
personnel and the person's responsive statements were part
of a routine processing or booking of that person.
Electronic recording is not required of spontaneous
statements made in response to questions asked during the
routine processing of the arrest of the person.
This bill provides that if the prosecution relies on an
exception to justify a failure to make an electronic recording
of a custodial interrogation, the prosecution shall show by
clear and convincing evidence that the exception applies.
This bill provides that the presumption of inadmissibility of
statements provided in this section may be overcome, and a
person's statements that were not electronically recorded may be
admitted into evidence in a criminal proceeding or a in a
juvenile court proceeding, as applicable if the court finds that
all of the following apply:
If the statements are admissible under applicable rules
of evidence.
The prosecution has proven by clear and convincing
evidence that the statements were made voluntarily.
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Law enforcement personnel made a contemporaneous audio
or audio and visual recording of the reason for not making
an electronic recording of the statements. This provision
does not apply if it was not feasible for law enforcement
personnel to make that recording.
The prosecution has proven by clear and convincing
evidence that one or more of the exceptions existed at the
time of the custodial interrogation.
This bill provides that unless the court finds that an exception
applies, all of the following remedies shall be granted at a
relief for noncompliance:
Failure to comply with any requirements of this section
shall be considered by the court in adjudicating motions to
suppress a statement of a defendant made during or after a
custodial interrogation.
Failure to comply with any of the requirements of this
section shall be admissible in support of claims that the
defendant's statement was involuntary or unreliable,
provided the evidence is otherwise inadmissible.
If the court admits into evidence a statement made
during the custodial interrogation that was not
electronically recorded in compliance with this section,
the court, upon request of the defendant, shall give to the
jury cautionary instructions.
This bill requires the Judicial Council to develop jury
instructions that are substantially similar to the one set forth
in the bill.
This bill provides that the interrogating entity shall maintain
the original or an exact copy of an electronic recording made of
an electronic recording made of a custodial interrogation until
a conviction for any offense relating to the interrogation is
final and all direct and habeas corpus appeals are exhausted or
the prosecution for that offense is barred by law, or in a
juvenile court proceeding, otherwise provided in WIC Section
626.8. The interrogating entity may make one or more true,
accurate, and complete copies of the electronic recording in a
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different format.
This bill provides that compliance with the electronic recording
requirement shall be monitored by the Judicial Council. The
Judicial Council shall develop forms to survey interrogations
and outcomes to identify any patterns of noncompliance with the
requirements of this section.
This bill provides that the forms created shall be completed and
submitted by the judge and the prosecutor to the Judicial
Council for any of the following cases:
Cases in which recorded interrogations were introduced
as evidence in a criminal proceeding.
Cases in which interrogations were not recorded, but
were nonetheless introduced as evidence in a criminal
proceeding.
Cases in which interrogations were recorded and a plea
of guilty to a felony was entered and accepted by the
court.
Cases in which interrogations were not recorded and a
plea of guilty to a felony offense was entered and accepted
by the court.
This bill provides that compliance with electronic recording
requirements shall also be monitored by the Department of
Justice. The DOJ shall develop forms for the purpose of
identifying any patterns of noncompliance. The forms shall
describe the charges against the person, the location where the
interrogation took place and the exception that was the primary
basis for failure to record the interrogation. These forms shall
be completed and submitted to the department by the
interrogating officer or officers in each case of an unrecorded
interrogation, regardless of whether the electronic recording is
inadmissible under this section.
This bill defines "custodial interrogation" as any interrogation
in a fixed place of detention involving a law enforcement
officer's questioning that is reasonably likely to elicit
incriminating responses, and in which a reasonable person in the
subject's position would consider himself or herself to be in
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custody, beginning when a person should have been advised of his
or her constitutional rights, including the right to remain
silent, the right to have counsel present during any
interrogation, and the right to have counsel appointed if the
person is unable to afford counsel, and ending when the
questioning has completely finished.
This bill defines "Electronic Recording" as an audio or video
recording that accurately records a custodial interrogation.
This bill defines "fixed place of detention" as a fixed location
under the control of a law enforcement agency where an
individual is held in detention in connection with a criminal
offense that has bee, or may be, filed against that person,
including a jail, police or sheriff's station, holding cell,
correction or detention facility, juvenile hall, or a facility
of the Division of Juvenile Facilities.
This bill defines "law enforcement officer" as a person employed
by a law enforcement agency whose duties include enforcing
criminal laws or investigating criminal activity, or any other
person who is acting at the request or direction of that person.
This bill provides that the provisions requiring the electronic
recording of custodial interrogations apply to any custodial
interrogation of a person who may be adjudged a ward of the
juvenile court under WIC 602 related to an offense in WIC
707(b).
This bill provides that the interrogating entity shall maintain
an original or exact copy of any electronic recording made of a
custodial interrogation until the person is no longer subject to
the jurisdiction of the juvenile court, unless the person is
transferred to a court of criminal jurisdiction then the
interrogation shall be kept as otherwise required in this bill.
This bill makes a number of Legislative findings and
declarations.
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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 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 oppose 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, continue to deliver health care that is
constitutionally deficient."
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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.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. 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:
The development of DNA technology and the subsequent
exonerations of nearly 200 innocent people have opened
a window into the errors in the criminal justice system
that can lead to wrongful convictions. This was
apparent in a national study conducted by Professor
Samuel Gross of the University of Michigan that
identified false confessions, extracted during police
questioning of suspects, as the second most frequent
cause of wrongful conviction. As a result, it has
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become imperative that we develop policies that enhance
the fact-finding power of the criminal justice system
through procedures designed to present the best quality
of evidence possible in the courtroom.
The reforms contained within SB 569, specifically the
requirement to videotape the custodial interrogations
of juveniles for certain serious crimes, will improve
criminal investigation techniques, reduce the
likelihood of wrongful conviction, and further the
cause of justice in California.
With research indicating that false confessions occur
with alarming frequency, juveniles remain the group
most prone to wrongful convictions. Research has
demonstrated that brain development continues
throughout adolescence and into early adulthood.
Specifically, the brain's frontal lobes, responsible
for mature thought, reasoning, and judgment, develop
last. Adolescents use their brains in a fundamentally
different manner than adults. They are more likely to
act on impulse, without fully considering the
consequences of their decisions or actions.
The U.S. Supreme Court has recognized these biological
and developmental differences in their recent decisions
on the juvenile death penalty, juvenile life without
parole and the interrogations of juvenile suspects
(Roper v. Simmons, Graham v. Florida, and J.D.B. v.
North Carolina, respectively). In particular, the
Supreme Court has recognized that there is a heightened
risk that juvenile suspects will falsely confess when
pressured by police during the interrogation process.
Research also demonstrates that when in police custody,
many juveniles do not fully understand or appreciate
their rights, options or alternatives.
Videotaping of interrogations has emerged as a powerful
innovation and fact-finding tool for the criminal
justice system. A central objective of the criminal
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justice system is to accurately ascertain the facts
surrounding criminal offenses in order to correctly
identify perpetrators so that they may be punished. The
virtue of videotaping interrogations, and its strength
as a public policy, lies not only in its ability to
help guard against false confessions, but also in its
ability to develop the strongest evidence possible to
help convict the guilty.
The ability to view such a permanent record is integral
to the subsequent assessment of the juvenile, his or
her comprehension of the Miranda warnings, and the
nature, setting and circumstances of the interrogation.
2. False Confessions
Every year many people are wrongly convicted because of false
confessions. Defendants also often make motions to exclude
statements made during an interrogation arguing that they were
coerced, there was abuse or the statement was not made. Studies
have shown that recording of interrogations puts an end to
disputes regarding statements and also has additional benefits.
In March 2000, after declaring a moratorium on executions, the
then Governor of Illinois George Ryan appointed a Commission to
see what reforms to the death penalty would be necessary to make
it fair and just in Illinois. After 24 months of study the
Commission set forth 85 recommendations. Among the
recommendations of Illinois Governor's Commission on Capital
Punishment (Illinois Commission) was the recommendation that:
Custodial interrogations of a suspect in a homicide case
occurring at a police facility should be videotaped.
Videotaping should not include merely the statement made
by the suspect after interrogation, but the entire
process.<3>
Illinois followed the recommendation, becoming "the first state
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<3> Recommendation 4, Report of the Illinois Governor's
commission on Capital Punishment (April 2002).
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(recently joined by Maine and the District of Columbia) to
require by statute electronic recording of custodial
interrogations in custodial interrogations in homicide
investigations."<4>
On July 25, 2006 the California Commission on the Fair
Administration of Justice (CCFAJ) issued a "Report and
Recommendations Regarding False Confessions." The Commission
had a public hearing on June 21, 2006 and studied the reports of
the commissions and task forces assembled in other states
addressing the issue of false confessions, as well as research
documenting 125 cases of false confessions by suspects who were
indisputably proven to be innocent. CCFAJ found that:
Although it may seem surprising that factually innocent
persons would falsely confess to the commission of
serious crimes, the research provides ample evidence
that this phenomenon occurs with greater frequency than
widely assumed. The research of Professors Steven Drizin
and Richard A. Leo identifies 125 cases which occurred
between 1972 and 2002 , with 31% of them occurring in
the five years previous to 2003. Eight of these
examples, or 6 % of the sample, occurred in California
cases. (California Commission on the Fair Administration
of Justice, "Report and Recommendations Regarding False
Confessions" p.2 www.ccfaj.org)
Like the Illinois Commission CCFAJ found that recording
interrogations not only helps reduce false confessions but that:
There are a number of reasons why the taping of
interrogations actually benefits the police departments
that require it. First, taping creates an objective,
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<4> Sullivan, Thomas P.; "Police Experiences with Recording
Custodial Interrogations" A special report by: North western
University School of Law Center on Wrongful Convictions, Summer
2004, p. 2.
(www.law.northwestern.edu/wrongfulconvictions/caused/custodialint
errogations.htm)
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comprehensive record of the interrogation. Second,
taping leads to the improved quality of interrogation,
with a higher level of scrutiny that will deter police
misconduct and improve the quality of interrogation
practices. Third, taping provides the police protection
against false claims of police misconduct. Finally, with
taping, detectives, police managers, prosecutors,
defense attorneys and judges are able to more easily
detect false confessions and more easily prevent their
admission into evidence. (Id. p. 4)
3. Electronic Recording of Interrogations
There are a number of jurisdictions in California that
voluntarily, at least some of the time, electronically record
interrogations. This bill would require the electronic
recording of the entire interrogation of a minor who is
suspected of committing an offense listed in Welfare and
Institutions Code Section 707 (b).
a. Rebuttable Presumption
This bill provides that a statement electronically recorded
pursuant to this section creates a rebuttable presumption that
the electronically recorded statement was, in fact, given and
was accurately recorded by the prosecution's witnesses,
provided that the electronic recording was made of the
custodial interrogation in its entirety and the statement is
otherwise admissible. The recording requirement applies in
both adult and juvenile court.
b. Exceptions
This bill creates a number of exceptions to the requirement
that the interrogation be recorded.
If it is not feasible because of exigent
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circumstances.
The person will only speak if it is not recorded.
The interrogation took place in another jurisdiction
and followed that jurisdiction's rules.
The interrogation took place when the facts would
not lead the officer to believe that the person could be
guilty of a serious or violent felony.
The officer has reason to believe the electronic
recording would disclose the identity of a confidential
informant or jeopardize the safety of an officer or
another individual.
The device malfunctioned.
The questions were part of the routine booking
process.
When an exception is used the prosecutor must show by clear
and convincing evidence that the exception applies.
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a. Admissibility of Statements
This bill provides that the presumption of inadmissibility
of statements may be overcome and a person's statement that
was not electronically recorded may be admitted into
evidence in a criminal proceeding if the court finds all of
the following apply:
The statements are admissible under applicable
rules of evidence.
The prosecution has proven by clear and
convincing evidence that the statements were made
voluntarily.
Law enforcement personnel made contemporaneous
audio or visual recording of the reason for not making
an electronic recording of the statement, unless the
reason was that it was not feasible.
The prosecution has proven by clear and
convincing evidence that one or more of the
circumstances existed at the time of the custodial
interrogation.
a. Remedies
If a statement is not recorded, and a court does not find that
one of the exceptions apply then the following remedies shall
be granted:
It shall be considered by the court in adjudicating
motions to suppress a statement of a defendant made
during or after a custodial interrogation.
The failure to comply shall be admissible in support
of claims that a defendant's statement was involuntary or
is unreliable, provided the evidence is otherwise
admissible.
If the court admits an unrecorded statement then the
court, upon the request of the defendant, give the jury a
cautionary jury instruction.
a. Jury Instruction
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This bill provides that Judicial Council shall develop jury
instructions for the court to give when a statement is
admitted that was not electronically recorded in accordance
with this bill. The bill outlines a sample jury instruction
and says the one created by Judicial Council shall be
substantially similar to the one in the bill.
b. Maintaining the Recording
The original or exact copy of an electronic recording shall be
kept until a conviction for any offense relating to the
interrogation is final and all direct and habeas appeals are
exhausted or the prosecution for that offense is barred by
law. If the case stays as a juvenile proceeding then the
recording shall be kept until the person is no longer the
subject of juvenile court.
c. Monitoring Compliance
Under this bill both the Judicial Council and the Department
of Justice (DOJ) are required to monitor compliance with the
electronic recordings set up by the bill. Judicial Council
will be creating forms to be filled out by the judge and
prosecutor with information regarding cases that either
electronically recorded statements were admitted or statements
that should have been electronically recorded but were
admitted.
The DOJ will create forms that are to be filled out by the
interrogating officer and will determine whether recordings
were made and if not what the primary reason for not recording
was.
It is not clear how the monitoring by either Judicial Council
or DOJ would work. The Judicial Council generally would not
be overseeing what a prosecutor does or does not do and this
could be violation of separation of powers. Would having
every interrogator for any suspected serious or violent felony
fill out an additional form to send to DOJ be productive? Is
SB 569 (Lieu)
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this oversight necessary? Isn't the oversight by the courts
in admitting or not admitting evidence at trial and any
appeals that come from those decisions sufficient oversight?
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