BILL ANALYSIS Ó
SB 569
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Date of Hearing: August 13, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 569 (Lieu) - As Amended: May 28, 2013
SUMMARY : Requires the custodial interrogation of juveniles
suspected of committing murder to be electronically recorded in
its entirety. Specifically, this bill :
1)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.
2)Provides the following exceptions to the requirement of
electronic recordation:
a) Electronic recording is not feasible because of exigent
circumstances, which shall be recorded in the police
report;
b) 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 interrogation that he or she
will not participate in further interrogation unless
electronic recording ceases. If the person being
interrogated refuses to record any statement, the officer
shall document that refusal in writing;
c) 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 electronic recordation
pursuant to this bill;
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d) 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 murder. If during a custodial interrogation, the
individual reveals facts and circumstances giving a law
enforcement officer conducting the interrogation reason to
believe that the individual has committed murder, continued
custodial interrogation concerning that offense shall be
electronically recorded;
e) A law enforcement officer conducting 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;
f) 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; and,
g) 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 for spontaneous
statements made in response to questions asked during the
routine processing of the arrest of the person.
3)States if the prosecution relies on one of the listed
exceptions 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.
4)Specifies that the presumption of inadmissibility of
statements may be overcome, and a person's statements that
were not electronically recorded may be admitted into evidence
in a criminal proceeding or in a juvenile court proceeding if
the court finds that all of the following apply:
a) The statements are admissible under applicable rules of
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evidence;
b) The prosecution has proven by clear and convincing
evidence that the statements were made voluntarily;
c) 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; and,
d) The prosecution has proven by clear and convincing
evidence that one or more of the exceptions applied at the
time of the custodial interrogation.
5)Creates the following remedies as relief for noncompliance
where the court finds an exception does not apply:
a) Failure to comply with any of the 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;
b) Failure to comply with any of the requirements of this
section shall be admissible in support of claims that a
defendant's statement was involuntary or is unreliable,
provided the evidence is otherwise admissible; or,
c) If the court admits into evidence a statement made
during a 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.
6)Provides sample jury instruction language and states that
Judicial Council shall develop jury instructions that are
substantially similar when developing the cautionary
instruction pursuant to the provisions of this bill.
7)Requires the interrogating entity to maintain the original or
an exact copy 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 as otherwise specified.
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8)Authorizes the interrogating entity to make one or more true,
accurate, and complete copies of the electronic recording in a
different format.
9)Defines an "electronic recording" as a video recording that
accurately records a custodial interrogation.
10)Defines a "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 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.
11)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 been, or may be, filed against that person, including a
jail, police or sheriff's station, holding cell, correctional
or detention facility, juvenile hall, or a facility of the
Division of Juvenile Facilities.
12)Sets forth various legislative findings and declarations
related to false confessions.
EXISTING LAW :
1)Provides that nothing in existing statutes prohibiting
wiretapping and eavesdropping prohibits a prosecutor, a law
enforcement officer, 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 that he or she could lawfully
overhear or record, nor renders inadmissible any evidence
obtained by any of the above-named persons by means of
overhearing or recording any communication that they could
lawfully overhear or record. (Penal Code Section 633.)
2)Creates the Commission on Peace Officer Standards and Training
(CPOST) and provides that CPOST shall adopt, and may from time
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to time amend, rules establishing minimum standards for the
recruitment and training of peace officers. (Penal Code
Section 13510.)
3)Mandates CPOST to prepare guidelines establishing standard
procedures which may be followed by police agencies and
prosecutors in interviewing minor witnesses. (Penal Code
Section 13517.5.)
4)States when a minor is taken into temporary custody by a peace
officer or taken before a probation officer, the officer is
required to advise the minor that anything he or she says can
be used against him or her, and advise him or her of his or
her constitutional rights, including the right to remain
silent, right to have counsel present during any
interrogation, and the right to have counsel appointed if he
or she is unable to afford counsel. (Welfare and Institutions
Code Sections 625 and 627.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "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,
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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 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)Fifth Amendment Protections : The Fifth Amendment of the U.S.
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.
To establish a valid waiver of Miranda rights, the prosecution
must show by a preponderance of the evidence that the waiver
was knowing, intelligent, and voluntary. [People v. Williams
(2010) 49 Cal.4th 405, 425.] Voluntariness of a juvenile's
confession is to be treated differently than an adult's. The
court must consider and weigh the age, intelligence, education
and ability to comprehend when determining whether the
confession was a product of free will and an intelligent
waiver of the minor's Fifth Amendment rights. [In re Aven S.
(1991) 1 Cal.App.4th 69, 75.]
This bill requires the electronic recordation of the custodial
interrogation of minors suspected of committing murder. This
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bill specifies that the electronic recording must be made of
the custodial interrogation in its entirety beginning when the
minor is, or should have been, advised of his or her
constitutional rights, including the right to remain silent
and right to have counsel present during any interrogation,
and ending when the questioning has completely finished. The
purpose of requiring the custodial interrogation to be
recorded in its entirety is to allow the factfinder to
evaluate whether a statement or confession made during the
custodial interrogation was voluntary.
3)False Confessions : According to the Innocence Project of
Northern California, "False confession cases always result
from the way that an interrogation has taken place. The
purpose of an interrogation is for law enforcement to collect
information or obtain a confession and admission of guilt.
One of the most common interrogation methods used by law
enforcement officers is the 'Reid Technique.' The Reid
Technique trains officers to first ask non-accusatory
questions in order to determine whether the subject is lying
about their involvement in the crime. If the officer believes
that the subject is involved in the crime, then an accusatory
interrogation takes place. At this stage, the officer asks
questions believing that the subject is guilty and the goal is
to have the subject admit guilt.
"Noted false confession expert Richard Leo has found fault with
the Reid Technique and claims that the methods taught are
'psychologically coercive' and contain three major errors: 1)
Misclassification error occurs when the officer decides that
an innocent person is guilty; 2) Coercion error occurs when,
subjected to psychologically coercive factors (e.g., stress,
fatigue, lengthy questioning, or mental or physical fatigue)
the suspect feels that their only choice is to comply and
admit guilt; 3) Contamination error occurs when, after
admitting guilt, the police help create a narrative of the
crime that includes facts than an innocent person would not
know. Other researchers have created experiments where
psychologically coercive techniques were used to capture false
confessions in an experimental setting.
"How can we evaluate whether a wrongfully accused person has
confessed? According to false confession expert Saul Kassin,
there are certain factors to look for. Age is a factor as
juveniles are more vulnerable, especially those under 14 years
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old. Persons with mental illness or with low IQs are also
prone to falsely admit guilt. Also, the longer the
interrogation period, the likelihood of a false confession
increases. A review of 125 wrongful conviction cases showed
that 84% of the false confessions occurred after more than 6
hours of questioning." [See
(as of July 29, 2013).]
One of the reforms advocated by the California Innocence Project
to prevent false confessions by innocent persons and wrongful
convictions is for states to require that interrogations be
recorded in totality.
4)Benefits to Law Enforcement : There are a number of benefits
in recording interrogations: it allows the interviewer to
question the suspect without any distractions (notebooks,
statement forms, or typewriters), observe the suspect's
demeanor and body language, and use the recordings as training
for other personnel. Recording interrogations also reduces
allegations of coerced or false confessions. A National
Institute for Justice study found that law enforcement
agencies experienced 43.5% fewer allegations of improper
police tactics as a result of recording interrogation
sessions. This practice also enhances the reliability of any
statements as judges and juries are able to view the tape
themselves.
5)Argument in Support : According to the American Civil
Liberties Union (a co-sponsor of this bill), "[O]ver five
hundred (500) police departments throughout the country
require the taping of interrogations and confessions. A
substantial number of departments in California already report
that they currently record a majority of custodial
interrogations, including County Sheriffs of Alameda, Butte,
Contra Costa, El Dorado, Orange, Placer, Sacramento, San
Bernardino, San Joaquin, Santa Clara (including all police
agencies operating within the county), Ventura, and Yolo
Counties. Municipal police departments for Sacramento, San
Diego, San Francisco, and San Jose also record interrogations
as well. Experienced detectives from these departments report
great satisfaction with the results of recorded
interrogations, including but not limited to higher conviction
rates, less time litigating unwarranted suppression motions,
and fewer claims of police misconduct.
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"A disproportionate number of false confessions are provided by
juveniles. For example, in a database of one hundred twenty
five proven false confessions, thirty-three percent involved
confessions from juveniles, most of whom confessed to brutal
murders (Drizin & Leo, 2004).
"Young people are far more susceptible to interrogation by
adults. Taping said interrogation will provide a necessary
window into the defendant's responses - providing a more
complete picture of the confession."
6)Argument in Opposition : The Juvenile Court Judges of
California opposes this bill "because of concerns that the
bill language is cumbersome and that procedures to determine
whether there was a proper excuse for not recording the
interview would delay court proceedings."
7)Related Legislation : SB 618 (Leno) streamlines the process
for compensating persons who have been exonerated after being
wrongfully convicted and imprisoned. SB 618 is pending
hearing by the Committee on Appropriations.
8)Prior Legislation :
a) SB 1300 (Alquist), of the 2011-12 Legislative Session,
would have required the electronic recordation of custodial
interrogations of both adults and minors suspected of
serious or violent felonies. SB 1300 was held on the
Senate Appropriations Committee's Suspense File.
b) SB 1590 (Alquist), of the 2007- 08 Legislative Session,
would have required the electronic recordation of any
custodial interrogation of an individual suspected of
homicide or a violent felony. SB 1590 was held on the
Senate Appropriations Committee's Suspense File.
c) SB 511 (Alquist), of the 2007-08 Legislative Session,
would have required custodial interrogations of violent
felony suspects to be electronically recorded. SB 511 was
vetoed.
d) SB 171 (Alquist), of the 2005- 06 Legislative Session,
would have required the electronic recording of all
custodial interrogations relating to homicides and all
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violent felony offenses. SB 171 was vetoed.
e) AB 161 (Dymally), Chapter 754, Statutes of 2003, would
have encouraged law enforcement officials to videotape and
record the interrogation of a person accused of, arrested
for, or charged with a felony. AB 161 was later amended to
a different subject matter.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (Co-Sponsor)
California Attorneys for Criminal Justice (Co-Sponsor)
California Public Defenders Association (Co-Sponsor)
Friends Committee on Legislation of California
National Association of Social Workers - California Chapter
Taxpayers for Improving Public Safety
21 private individuals
Opposition
Juvenile Court Judges of California
Los Angeles County District Attorney's Office
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744