BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 569
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          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 |
           ----------------------------------------------------------------- 

           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 


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