BILL ANALYSIS Ó
SB 569
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Date of Hearing: August 21, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 569 (Lieu) - As Amended: May 28, 2013
Policy Committee: Public
SafetyVote:6-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill requires the custodial interrogation, in a fixed place
of detention, of a minor suspected of committing murder to be
video recorded in its entirety. Specifically, this bill:
1)Creates a rebuttable presumption the recorded statement was
made and accurately recorded by prosecution witnesses,
provided the recording includes the entire custodial
interrogation.
2)Provides exceptions to the recording requirement. If the
prosecution uses an exception, it must show by clear and
convincing evidence the exception applies. The exceptions are:
a) Recording is not feasible due to exigent circumstances.
b) The person to be interrogated states he or she will
speak to a law enforcement officer only if the
interrogation is not recorded. If feasible, that statement
shall be recorded.
c) The custodial interrogation took place in another
jurisdiction and was conducted in compliance with the law
of that jurisdiction.
d) The interrogation occurs when the law enforcement
officer conducting the interrogation has no knowledge of
facts and circumstances that would lead an officer to
reasonably believe the individual being interrogated may
have committed murder.
e) A law enforcement officer conducting the interrogation
reasonably believes recording would disclose the identity
of a confidential informant or jeopardize someone's safety.
f) The failure to record the custodial interrogation was
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the result of a technical malfunction.
g) The questions and the response were part of a routine
processing.
3)Specifies failure to comply with the recording requirements is
admissible in support of claims that a defendant's statement
was involuntary or is unreliable.
4)Requires, if the court admits into evidence a statement made
during a custodial interrogation that was not recorded in
compliance with this section, the court to give the jury
cautionary instructions. The Judicial Council shall develop
jury instructions, as specified.
5)Requires the interrogating entity to maintain the original or
exact copy of a recording until a conviction is final and all
appeals are exhausted, or as otherwise specified.
FISCAL EFFECT
1)Potentially significant state-mandated and reimbursable local
start-up costs (GF), in the range of $1 million, for video
recording equipment and storage. To the extent city and county
agencies file successful mandate claims for personnel and
facility improvements for recording purposes, costs could be
greater. Ongoing costs for equipment replacement and repair
would likely be in the $100,000 range.
Though many law enforcement agencies in California currently
record interrogations of violent crime suspects, and many
conduct no murder interrogations of minors in a given year,
this bill would mandate such recordings, thereby allowing all
local law enforcement agencies to file a claim with the state
for interrogation costs related to recording equipment,
maintenance and replacement, and facilities, regardless of
usage.
While some proponents suggest the cost of recording equipment
need not be significant, many interviews are recorded
surreptitiously, which requires more elaborate equipment. Law
enforcement authorities and district attorneys indicate the
cost of equipment and interrogation rooms, which allow
surreptitious recording and require specific sound standards,
range into the tens of thousands of dollars. With 58 sheriff
departments and some 330 police departments, if the average
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cost is $50,000 for the 10 largest departments, $25,000 for
the 10 next departments, and $10,000 for the remaining
counties, mandated start-up costs would exceed $1 million.
Over the five-year period through 2011, the number of annual
murder arrests averaged 1,776. Persons under the age of 18
accounted for almost 11% of these arrests (195).
2)Potentially moderate state costs, in the low hundreds of
thousands of dollars, for interrogations conducted by state
peace officers at facilities.
3)Unknown, likely minor state trial court costs to the extent
courts need to spend additional time hearing admissibility
issues. If, for example, half of the arrests result in trial,
and half of those trials require an additional hour of court
time to determine admissibility issues involving
interrogation, the additional court costs would be in the
range of $15,000.
4)Minor absorbable costs to the Judicial Council to develop jury
instructions as specified.
5)Unknown potential GF trial court savings to the extent
mandated interrogation recording results in fewer false
confessions, expedited trials as a result of clearer evidence,
and fewer motions relating to interrogation issues.
COMMENTS
1)Rationale . The intent of this bill is to help ensure the
correct person is prosecuted. For many California law
enforcement agencies this is current practice. The result of
recording police interrogations is an accurate record of the
suspect's statements and law enforcement's actions. This bill
is intended to decrease the incidence of false confessions,
thereby protecting the innocent while providing the best
evidence against the guilty. Recordings also prevent disputes
about officers' conduct.
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
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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 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.
2)Recommendations of the CA Commission on the Fair
Administration of Justice . Established by SR 44 (Burton) in
2004, the commission was directed to study and review the
administration of criminal justice and recommend improvements.
In 2006, the commission released its recommendations regarding
false confessions, which are reflected in this bill. The
report was signed by 18 of 19 members, including former
Attorney General John Van de Kamp (chair); Attorney General
Bill Lockyer; L.A.P.D. Chief William Bratton; District
Attorneys Jim Fox (San Mateo), George Kennedy (Santa Clara)
and Greg Totten (Ventura). L.A. Sheriff Lee Baca abstained.
The 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
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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 only objection to mandating the recording of police
interrogation heard by the Commission was to the potential
cost of video recording, as compared to audio recording.
"The cost of recording custodial interrogations must be
measured against the cost of false confessions, which takes a
devastating human toll upon 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 costs 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."
3)Support includes the ACLU, CA Attorneys for Criminal Justice,
and the CA Public Defenders Association. According to the
ACLU: "[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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4)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."
5)Previous related legislation includes four attempts by Sen.
Elaine Alquist to require electronic recording of
interrogations:
a) SB 1300 (Alquist), 2012, required electronic recording
of custodial interrogations of adults and minors suspected
of serious or violent felonies. SB 1300 was held on the
Senate Appropriations Suspense File.
b) SB 1590 (Alquist), 2008, required electronic recording
of any custodial interrogation of any individual suspected
of homicide or a violent felony. SB 1590 was held on the
Senate Appropriations Suspense File.
c) SB 511 (Alquist), 2007, required electronic recording of
custodial interrogations of violent felony suspects. SB
511 was vetoed. Gov. Schwarzenegger stated: "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."
d) SB 171 (Alquist), 2005-06, required the electronic
recording of custodial interrogations relating to homicides
and violent felony offenses. SB 171 was vetoed.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081
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