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 ----------------------------------------------------------------- |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 | ----------------------------------------------------------------- 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 SB 569 Page 2 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 SB 569 Page 3 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. SB 569 Page 4 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 SB 569 Page 5 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. SB 569 Page 6 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 SB 569 Page 7 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