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.