BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 569| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 CONTINUED SB 569 Page 2 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 CONTINUED SB 569 Page 3 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 CONTINUED SB 569 Page 4 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 CONTINUED SB 569 Page 5 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 CONTINUED SB 569 Page 6 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: CONTINUED SB 569 Page 7 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 CONTINUED SB 569 Page 8 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 CONTINUED SB 569 Page 9 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 **** END **** CONTINUED