BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 569 (Lieu) - Interrogation: electronic recordation.
          
          Amended: As Introduced          Policy Vote: Public Safety 7-0
          Urgency: No                     Mandate: Yes
          Hearing Date: May 23, 2013      Consultant: Jolie Onodera
          
          SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
          
          
          Bill Summary: SB 569 would require the electronic recordation of  
          custodial interrogations of minors suspected of committing  
          specified offenses, and set forth exceptions and remedies to  
          that requirement. This bill would require compliance with the  
          electronic recording requirement to be monitored by the Judicial  
          Council and the Department of Justice (DOJ), as specified.

          Fiscal Impact (as approved on May 23, 2013): 
              Increased annual court costs to consider the admissibility  
              of electronically recorded interrogations, or lack thereof,  
              of about $250,000 (General Fund*) for petitions filed under  
              WIC § 707(b)(1). 
              Potentially major reimbursable state-mandated local law  
              enforcement start-up costs in the hundreds of thousands to  
              millions of dollars (General Fund) to the extent electronic  
              recording equipment, storage, personnel, and facilities  
              improvement are required. 
              Annual ongoing reimbursable state-mandated local law  
              enforcement costs (General Fund) for increased workload  
              associated with interrogation recordation and equipment  
              maintenance. 
              Potential one-time significant costs (General Fund) for the  
              CDCR to purchase electronic recording equipment. Annual  
              ongoing training and workload costs for recordation. 
              Potential one-time significant costs (Motor Vehicle  
              Account) to the California Highway Patrol (CHP) for video  
              recording equipment. Minor annual costs for maintenance of  
              equipment. 
              Unknown, potentially substantial future trial court cost  
              savings (General Fund) to the extent mandated electronic  
              interrogation recording results in fewer false confessions,  
              expedited trials, and avoided litigation involving  
              interrogation issues. 








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          *Trial Court Trust Fund

          Background: In its July 2006 report entitled "Report and  
          Recommendations Regarding False Confessions," the California  
          Commission on the Fair Administration of Justice (CCFAJ) noted  
          that false confessions were identified as the second most  
          frequent cause of wrongful convictions in a national study  
          previously reviewed by the CCFAJ. The CCFAJ report states: 

          "There are a number of reasons why the taping of interrogations  
          actually benefits the police departments that require it. First,  
          taping creates an objective, 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. The cost of  
          recording custodial interrogations must be measured against the  
          cost of false confessions, which takes a devastating human toll  
          on those who are wrongfully charged, their families, the victims  
          of crime, and their families. Closing a case with conviction of  
          the wrong person based upon a false confession also leaves the  
          real perpetrator at large, to victimize others. 

          The cost of litigating claims of police misconduct that might  
          have been deterred by taping, and the savings in avoiding false  
          claims of police misconduct should, in the long run, more than  
          pay the costs of implementation of a mandate that all custodial  
          interrogation in serious criminal cases be electronically  
          recorded."

          Welfare and Institutions Code (WIC) § 707(b) sets forth a list  
          of thirty offense categories which includes but is not limited  
          to, murder, arson, robbery, rape and other sex crimes by force,  
          kidnapping, assault, specified firearm offenses, carjacking,  
          voluntary manslaughter, escape, torture, manufacture or sale of  
          controlled substances, and any violent felony, as specified.

          Proposed Law: This bill would require the custodial  
          interrogation of a minor suspected of committing an offense  
          listed in WIC § 707(b) to be electronically recorded in its  








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          entirety. With regard to the scope of electronic recording, the  
          bill: 
               Provides that electronic recording shall not be required  
              under specified exceptions such as exigent circumstances,  
              potentially jeopardizing the identity of a confidential  
              informant, under the routine processing of and arrest, or  
              due to equipment malfunction, among others. 
               Provides that a minor's statements that were not  
              electronically recorded may be admitted into evidence  
              subject to specific criteria. 
               Creates relief for failure to electronically record a  
              statement, as specified. 
               Provides that the Judicial Council shall develop jury  
              instructions regarding the failure to electronically record  
              that are substantially similar to those specified in the  
              bill. 
               Requires the interrogating entity to maintain the original  
              or an exact copy of a recording until a conviction for any  
              offense is final and all appeals are exhausted or the  
              prosecution for that offense is barred by law. In the case  
              of a minor, the recording must be retained until the minor  
              is no longer under the jurisdiction of the juvenile court,  
              unless transferred to a court of criminal jurisdiction. 
               Requires the Judicial Council to monitor compliance with  
              the electronic recording requirement, develop forms to  
              survey interrogations and outcomes and to identify any  
              patterns of noncompliance. 
               Requires judges and prosecutors to complete and submit the  
              interrogation forms in cases in which interrogations were  
              and were not recorded and introduced as evidence in criminal  
              proceedings, as well as cases in which interrogations were  
              and were not recorded and a plea of guilty to a felony  
              offense was entered and accepted by the court. 
               Requires the DOJ to also monitor compliance with the  
              electronic recording requirement and develop forms for  
              identifying patterns of noncompliance. 
               Requires the interrogating officer to complete and submit  
              the DOJ form in each case of an unrecorded interrogation,  
              regardless of whether or not the electronic recording is  
              admissible. 
               Defines "electronic recording" as an audio or video  
              recording that accurately records a custodial interrogation.  

               Makes numerous uncodified legislative findings and  








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              declarations. 

          Related Legislation: SB 1300 (Alquist) 2012 would have required  
          the electronic recordation of custodial interrogations of both  
          adults and minors suspected of serious or violent felonies. This  
          bill was held on the Suspense File of this committee.

          SB 1590 (Alquist) 2008 would have required the electronic  
          recordation of any custodial interrogation of an individual  
          suspected of homicide or a violent felony. This bill was held on  
          the Suspense File of this committee. 

          SB 511 (Alquist) 2007 would have required custodial  
          interrogations of violent felony suspects to be electronically  
          recorded. This bill was vetoed by the Governor with the  
          following message: 

          I am returning Senate Bill 511 without my signature. While  
          reducing the number of false confessions is a laudable goal, I  
          cannot support a measure that would deny law enforcement the  
          flexibility necessary to interrogate suspects in homicide and  
          violent felony cases when the need to do so is not clear. Police  
          interrogations are dynamic processes that require investigators  
          to use acumen, skill and experience to determine which methods  
          of interrogation are best for the situation. This bill would  
          place unnecessary restrictions on police investigators. 

          SB 171 (Alquist) 2006, a similar measure, was also vetoed by the  
          Governor.

          Staff Comments: This bill would result in significant costs to  
          state agencies, including the CDCR, CHP, DOJ, as well as the  
          Judicial Council. Moreover, this bill creates a reimbursable  
          state-mandated local program on local law enforcement agencies  
          and district attorneys. Finally, this bill requires the Judicial  
          Council and the DOJ to monitor compliance with the requirements  
          established for electronic recordings, which will result in  
          potentially significant one-time and ongoing annual costs to  
          both agencies. 

          Local law enforcement agencies may currently record  
          interrogations electronically, however, by requiring this  
          activity for specified minor cases as well as specifying records  
          retention will result in costs for the purchase of equipment,  








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          storage, staff time, and possibly additional facility space.  
          With 58 sheriff departments and over 330 police departments  
          statewide, even a relatively modest cost of $2,500 to $5,000 per  
          department would equate to $0.8 million to $1.9 million in  
          initial costs. Ongoing state-reimbursable costs for  
          administration and equipment maintenance would also be incurred.  
          The bill defines "electronic recording" as an audio or video  
          recording. Costs for equipment would vary based on the method of  
          recordation utilized by each entity.

          This bill requires interrogating officers to complete the newly  
          developed DOJ form for each case of an unrecorded interrogation,  
          regardless of its inadmissibility, which will result in  
          additional ongoing state-reimbursable costs for increased  
          workload of an unknown, but potentially significant amount. The  
          DOJ annual report on juvenile crime in California reflects over  
          43,400 juvenile felony arrests in 2011. The exact magnitude of  
          these costs is unknown, but is potentially significant and would  
          be dependent on the number of reports filed and the time  
          involved to complete each form submitted. 

          According to the Judicial Council, there were approximately  
          20,000 juvenile petitions filed under WIC § 707(b) in 2011, plus  
          over 600 additional juveniles directly charged in the superior  
          court. It is assumed on average an additional 15 minutes for  
          each juvenile hearing in which the minor defendant is either  
          charged with a WIC § 707(b) offense in the juvenile court, or  
          charges against the juvenile are directly filed in the superior  
          court for the consideration of admissibility of the  
          electronically recorded interrogations, or lack thereof, would  
          be required by the authority of this bill. Taking into account  
          the time of the judicial officer and courtroom staff, the  
          average cost of a day in court is approximately $4,000. An  
          additional 15 minutes ($125) could result in additional costs to  
          the courts of $2.6 million (General Fund) per year. 

          The Judicial Council would be required to monitor compliance of  
          the electronic recording of custodial interrogations by law  
          enforcement, as well as develop forms to survey interrogations  
          and outcomes and to identify any patterns of noncompliance.  
          Although unclear how the oversight would be implemented, the  
          costs to the Judicial Council to establish such a system could  
          range from the low hundreds of thousands of dollars to upwards  
          of $1 million, depending on the complexity of the survey and the  








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          analysis required to identify patterns of noncompliance.

          The bill also requires judges and prosecutors to complete and  
          submit the forms developed by the Judicial Council in cases  
          involving the introduction of interrogations as evidence,  
          whether or not recorded, as well as in those cases in which a  
          guilty plea to a felony offense was entered and accepted by the  
          court regardless of whether interrogations were recorded. This  
          activity will result in costs for judges' and prosecutors' time  
          to complete/submit these forms. Requiring district attorneys to  
          complete and submit additional forms would result in annual  
          reimbursable state-mandated costs of an unknown but potentially  
          significant amount.

          To the extent the provisions of this bill result in fewer false  
          confessions of minors, expedited trials, and avoided litigation  
          involving interrogation issues, future trial court cost savings  
          could be substantial. 

          Committee amendments would 1) narrow the bill's scope to video  
          recording of custodial interrogations in homicide cases only,  
          and, 2) delete the Judicial Council and DOJ reporting mandates.