BILL ANALYSIS Ó
SB 569
Page 1
SENATE THIRD READING
SB 569 (Lieu)
As Amended September 3, 2013
Majority vote
SENATE VOTE :36-0
PUBLIC SAFETY 6-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Melendez, |Ayes:|Gatto, Harkey, Bigelow, |
| |Jones-Sawyer, Quirk, | |Bocanegra, Bradford, Ian |
| |Skinner, Waldron | |Calderon, Campos, |
| | | |Donnelly, Eggman, Gomez, |
| | | |Hall, Holden, Linder, |
| | | |Pan, Quirk, Wagner, Weber |
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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
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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;
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
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show by clear and convincing evidence that the exception
applies.
4)Specifies that 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
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 finds that a defendant was subject to a
custodial interrogation in violation of the requirements of
this bill, the court shall provide the jury with an
instruction, to be developed by the Judicial Council, that
advises the jury to view with caution the statements made
in that custodial interrogation.
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6)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.
7)Authorizes the interrogating entity to make one or more true,
accurate, and complete copies of the electronic recording in a
different format.
8)Defines an "electronic recording" as a video recording that
accurately records a custodial interrogation.
9)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.
10)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.
11)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
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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.
2)Creates the Commission on Peace Officer Standards and Training
(CPOST) and provides that CPOST shall adopt, and may from time
to time amend, rules establishing minimum standards for the
recruitment and training of peace officers.
3)Mandates CPOST to prepare guidelines establishing standard
procedures which may be followed by police agencies and
prosecutors in interviewing minor witnesses.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Potentially significant state-mandated and reimbursable local
start-up costs [General Fund (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.
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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
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 : 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
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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.
"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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0002175