BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                 UNFINISHED BUSINESS


          Bill No:  SB 569
          Author:   Lieu (D)
          Amended:  9/3/13
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 4/9/13
          AYES:  Hancock, Anderson, Block, De León, Knight, Liu, Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  7-0, 5/23/13
          AYES:  De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg

           SENATE FLOOR  :  36-0, 5/29/133
          AYES:  Anderson, Beall, Berryhill, Block, Calderon, Cannella,  
            Corbett, Correa, DeSaulnier, Emmerson, Evans, Fuller, Gaines,  
            Galgiani, Hancock, Hernandez, Hill, Hueso, Huff, Jackson,  
            Lara, Leno, Lieu, Liu, Monning, Nielsen, Padilla, Pavley,  
            Price, Roth, Torres, Walters, Wolk, Wright, Wyland, Yee
          NO VOTE RECORDED:  De León, Knight, Steinberg, Vacancy

           ASSEMBLY FLOOR  :  Not available


           SUBJECT  :    Interrogation:  electronic recordation

            SOURCE  :     American Civil Liberties Union
                       California Attorneys for Criminal Justice
                      California Public Defenders Association


           DIGEST  :    This bill requires the electronic recordation of  
          custodial interrogations of minors suspected of committing  
          murder, and sets forth exceptions and remedies to that  
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          requirement.  

           Assembly Amendments  specify that suspected murder is the  
          requirement for a juvenile to be electronically recorded and  
          adds jury instructions when custodial interrogations are in  
          violation, as specified.

           ANALYSIS  :    The Fifth Amendment of the Federal 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.

          Existing law:

          1. Creates the Commission on Peace Officer Standards and  
             Training (POST) and provides that the commission shall adopt,  
             and may from time to time amend, rules establishing minimum  
             standards relating to physical, mental, and moral fitness  
             that shall govern the recruitment of peace officers. 

          2. Provides that POST shall prepare guidelines establishing  
             standard procedures which may be followed by police agencies  
             and prosecutors in interviewing minor witnesses.

          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  

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                exigent circumstances, which shall be recorded in the  
                police report;

             B.    The person to be interrogated states that he/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/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;

             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  

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                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 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  

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                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.

          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  

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             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.

           Comments
           
          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/her comprehension of  
          the Miranda warnings, and the nature, setting and circumstances  
          of the interrogation.

           Related legislation
           
          SB 1300 (Alquist, 2012) would have required the electronic  
          recordation of custodial interrogations of both adults and  
          minors suspected of serious or violent felonies.  The bill was  
          held on the Senate Appropriations Committee suspense file.

          SB 1590 (Alquist, 2008) would have required the electronic  
          recordation of any custodial interrogation of an individual  
          suspected of homicide or a violent felony.  The bill was held on  
          the Senate Appropriations Committee suspense file.

          SB 511 (Alquist, 2007) would have required custodial  
          interrogations of violent felony suspects to be electronically  
          recorded.  This bill was vetoed by Governor Schwarzenegger with  
          the following message: 


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             I am returning Senate Bill 511 without my signature.   
             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. 

          SB 171 (Alquist, 2006) a similar bill, was also vetoed by the  
          Governor Schwarzenegger.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes


          According to the Senate Appropriations Committee:


             Increased annual court costs to consider the admissibility  
             of electronically recorded interrogations, or lack thereof,  
             of $2.6 million (General Fund*) for 20,600 petitions filed  
             under WIC Section 707(b) per year. 


             Potentially significant one-time and moderate annual ongoing  
             costs (General Fund*) for the Judicial Council to establish  
             and maintain a compliance monitoring system. Costs for the  
             development of forms and rules of court estimated at  
             $100,000, as well as increased workload for judges required  
             to complete/submit interrogation forms. 


             Potentially major reimbursable state-mandated local law  
             enforcement start-up costs in the hundreds of thousands to  
             millions of dollars (General Fund) to the extent electronic  
             recording equipment, storage, personnel, and facilities  
             improvement are required. 


             Annual ongoing reimbursable state-mandated local law  
             enforcement costs potentially in the hundreds of thousands to  

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             low millions of dollars (General Fund) for increased workload  
             associated with interrogation recordation and  
             completion/submittal of DOJ interrogation forms, as well as  
             equipment maintenance. 


             Potentially significant annual ongoing reimbursable  
             state-mandated local costs for district attorneys to complete  
             and submit interrogation forms developed by the Judicial  
             Council for specified cases. 


             Potential one-time significant costs (General Fund) for the  
             CDCR to purchase audio recording equipment. Annual ongoing  
             training and workload costs for recordation and  
             completion/submittal of interrogation forms. 


             Potential one-time costs of $170,000 (Motor Vehicle Account)  
             to the California Highway Patrol for audio recording  
             equipment. Minor annual costs for maintenance of equipment. 


             Potentially significant annual ongoing costs (General Fund)  
             for the DOJ to monitor compliance. One-time costs of  
             approximately $50,000 (General Fund) to develop forms. 

          Unknown, potentially substantial future trial court cost savings  
          (General Fund) to the extent mandated electronic interrogation  
          recording results in fewer false confessions, expedited trials,  
          and avoided litigation involving interrogation issues.

           SUPPORT  :   (Verified  9/11/13)

           American Civil Liberties Union (co-source)
           California Attorneys for Criminal Justice (co-source)
          California Public Defenders Association (co-source)
          Friends Committee on Legislation of California 
          Taxpayers for Improving Public Safety 
          National Association of Social Workers - California Chapter

           OPPOSITION  :    (Verified  9/11/13)

          California State Sheriffs' Association

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          Judicial Council of California
          Juvenile Court Judges of California
          Los Angeles County District Attorney
          Peace Officers Research Association of California

           ARGUMENTS IN SUPPORT  :    According to the author's office, the  
          development of DNA technology and the subsequent exonerations of  
          nearly 200 innocent people have opened a window into the errors  
          in the criminal justice system that can lead to wrongful  
          convictions.  This was apparent in a national study conducted by  
          Professor Samuel Gross of the University of Michigan that  
          identified false confessions, extracted during police  
          questioning of suspects, as the second most frequent cause of  
          wrongful conviction.  As a result, it has become imperative that  
          we develop policies that enhance the fact-finding power of the  
          criminal justice system through procedures designed to present  
          the best quality of evidence possible in the courtroom.

          The reforms contained within this bill, specifically the  
          requirement to videotape the custodial interrogations of  
          juveniles for certain serious crimes, will improve criminal  
          investigation techniques, reduce the likelihood of wrongful  
          conviction, and further the cause of justice in California.

           ARGUMENTS IN OPPOSITION  :    Juvenile Court Judges of California  
          opposes this bill because of concerns that this bill's language  
          is cumbersome and that procedures to determine whether there was  
          a proper excuse for not recording the interview would delay  
          court proceedings. 

          JG:d  9/11/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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