BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 569|
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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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