BILL ANALYSIS Ó
SB 1058
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Date of Hearing: June 10, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1058 (Leno) - As Amended: June 4, 2014
SUMMARY : Includes within the definition of "false evidence,"
for purposes of prosecuting a writ of habeas corpus, opinions of
experts that have either been repudiated by the expert who
originally provided the opinion at a hearing or trial or that
have been undermined by later scientific research or
technological advances. This bill also clarifies that these
provisions shall not be construed to create additional
liabilities, beyond those already recognized, for experts who
repudiate his or her own original opinion or whose basis has
been repudiated by later scientific or technological
advancements.
EXISTING LAW :
1)States that every person who is unlawfully imprisoned or
restrained of his liberty, under any pretense whatever, to
prosecute a writ of habeas corpus, to inquire into the cause
of such imprisonment or restraint. (Pen. Code, § 1473, subd.
(a).)
2)Provides that a writ of habeas corpus may be prosecuted for,
but not limited to, the following reasons (Pen. Code, § 1473,
subd. (b)):
a) False evidence that is substantially material or
probative on the issue of guilt or punishment was
introduced against a person at any hearing or trial
relating to his incarceration; or,
b) False physical evidence, believed by a person to be
factual, probative, or material on the issue of guilt,
which was known by the person at the time of entering a
plea of guilty, which was a material factor directly
related to the plea of guilty by the person.
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3)States that nothing in the provisions authorizing a writ of
habeas corpus shall be construed as limiting the grounds for
which a writ of habeas corpus may be prosecuted or as
precluding the use of any other remedies. (Pen. Code, § 1473,
subd. (d).)
4)Provides that the application for the writ is made by
petition, signed either by the party for whose relief it is
intended, or by some person in his behalf, and must specify
(Pen. Code, § 1474):
a) That the person in whose behalf the writ is applied for
is imprisoned or restrained of his liberty, the officer or
person by whom he is so confined or restrained, and the
place where, naming all the parties, if they are known, or
describing them, if they are not known;
b) If the imprisonment is alleged to be illegal, the
petition must also state in what the alleged illegality
consists; and,
c) The petition must be verified by the oath or affirmation
of the party making the application.
5)States that the writ must be directed to the person having
custody of or restraining the person on whose behalf the
application is made, and must command him to have the body of
such person before the Court or Judge before whom the writ is
returnable, at a time and place therein specified. (Pen.
Code, § 1477.)
6)Requires the person upon whom the writ is served must state in
his return, plainly and unequivocally (Pen. Code, § 1480):
a) Whether he has or has not the party in his custody, or
under his power or restraint;
b) If he has the party in his custody or power, or under
his restraint, he must state the authority and cause of
such imprisonment or restraint;
c) If the party is detained by virtue of any writ, warrant,
or other written authority, a copy thereof must be annexed
to the return, and the original produced and exhibited to
the Court or Judge on the hearing of such return; and,
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d) If the person upon whom the writ is served had the party
in his power or custody, or under his restraint, at any
time prior or subsequent to the date of the writ of habeas
corpus, but has transferred such custody or restraint to
another, the return must state particularly to whom, at
what time and place, for what cause, and by what authority
such transfer took place;
e) The return must be signed by the person making the same,
and, except when such person is a sworn public officer, and
makes such return in his official capacity, it must be
verified by his oath.
7)Requires the Court or Judge before whom the writ is returned,
immediately after the return, to proceed to hear and examine
the return, and such other matters as may be properly
submitted to their hearing and consideration. (Pen. Code, §
1483.)
8)States that the party brought before the Court or Judge, on
the return of the writ, may deny or controvert any of the
material facts or matters set forth in the return, or except
to the sufficiency thereof, or allege any fact to show either
that his imprisonment or detention is unlawful, or that he is
entitled to his discharge. The Court or Judge must thereupon
proceed in a summary way to hear such proof as may be produced
against such imprisonment or detention, or in favor of the
same, and to dispose of such party as the justice of the case
may require, and have full power and authority to require and
compel the attendance of witnesses, by process of subpoena and
attachment, and to do and perform all other acts and things
necessary to a full and fair hearing and determination of the
case. (Pen. Code, § 1484.)
9)States if no legal cause is shown for such imprisonment or
restraint, or for the continuation thereof, such Court or
Judge must discharge such party from the custody or restraint
under which he is held. (Pen. Code, § 1485.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 1058 would
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clarify that 'false evidence' includes repudiated and recanted
expert testimony that served as the primary basis for an
incarcerated individual's conviction.
"California's false testimony statutes are intended to protect
an individual from wrongful incarceration due to the false
testimony of a witness. Unfortunately, a recent court decision
created an unjust distinction between the false testimony of
laypersons-which a court may consider in overturning a
wrongful conviction-and that of "expert witnesses", which must
now meet a higher bar before being considered in overturning a
wrongful conviction. This contradictory interpretation is
unreasonable and exacerbates the problem of wrongful
convictions.
"This bill will allow a judge to determine when wrongful
incarceration has taken place due to a conviction that was
based on evidence that has been disproven by scientific and
technological advances.
"Quite simply, this bill will keep innocent people out of
prison."
2)Writ of Habeas Corpus Generally : Habeas corpus, also known as
"the Great Writ", is a process guaranteed by both the federal
and state constitutions to obtain prompt judicial relief from
illegal restraint. The functions of the writ is set forth in
Penal Code Section 1473(a): "Every person unlawfully
imprisoned or restrained of his or her liberty, under any
pretense whatever, may prosecute a writ of habeas corpus, to
inquire into the cause of such imprisonment or restraint."
Penal Code Section 1473(d) specifies that "nothing in this
section shall be construed as limiting the grounds for which a
writ of habeas corpus may be prosecuted." A writ of habeas
corpus may be prosecuted for, but not limited to, the
following reasons:
a) False evidence that is substantially material or
probative on the issue of guilt, or punishment was
introduced against a person at any hearing or trial
relating to his incarceration;
b) False physical evidence believed by a person to be
factual, material or probative on the issue of guilt, which
was known by the person at the time of entering a plea of
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guilty and which was a material factor directly related to
the plea of guilty by the person; and,
c) Any allegation that the prosecution knew or should have
known of the false nature of the evidence is immaterial to
the prosecution of a writ of habeas corpus. (Pen. Code, §
1473, subd. (b).)
A habeas corpus claim of false testimony requires proof that
false evidence was introduced against petitioner at his or her
trial and that such evidence was material or probative on the
issue of his or her guilt. (In re Bell (2007) 42 Cal.4th
630.) False evidence introduced at trial against a defendant
is substantially material or probative if there is a
reasonable probability that, had the false evidence not been
introduced, the result would have been different. (In re
Roberts (2003) 29 Cal.4th 726.) A reasonable probability that
the result would have been different if false evidence had not
been introduced against defendant is a chance great enough,
under the totality of circumstances, to undermine the court's
confidence in the outcome. (Ibid.) A habeas claim of false
testimony does not require a showing of perjury or other
knowledge of impropriety. (In re Hall (1981) 30 Cal.3d 308.)
A writ of habeas corpus may also be prosecuted based on newly
discovered evidence, and shall be granted only if the new
evidence undermines the entire prosecution case and point
unerringly to innocence or reduced culpability. (In re Clark
(1993) 5 Cal.4th 750, 766.)
3)Impetus for this Bill : The issue this bill seeks to address
was raised by the recent California Supreme Court ruling in In
re Richards (2012) 55 Cal.4th 948. The 4-3 majority in
Richards held that expert opinion stated at trial is "false
evidence" supporting a habeas relief if the expert's
conclusion is proved to be objectively untrue. (Richards,
supra, 55 Cal.4th at pg. 963.) Thus, a petitioner "does not
establish false evidence by presenting evidence that an expert
witness has recanted the opinion testimony given at trial."
(Ibid.)
In Richards, the petitioner was charged with murdering his wife.
His first trial ended in a mistrial after the jury was unable
to reach a verdict. His second trial was cancelled before a
jury was selected, when the trial court recused itself. His
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third trial also ended in a mistrial after the jury could not
reach a verdict. At his fourth trial, the prosecution
produced expert testimony regarding what appeared to be a bite
mark on the victim's hand. The prosecution's forensic dentist,
Dr. Sperber, testified that "it might be one or two less" out
of a hundred people who would have the petitioner's dental
irregularity. (Richards, supra, 55 Cal.4th at pg. 955.) After
visually comparing a photograph of the lesion on the victim's
hand to a model of petitioner's lower teeth, Dr. Sperber
stated his opinion that the lesion was a human bite mark, and
that petitioner's unusual dentition was consistent with the
bite mark. (Ibid.)
The defense also presented expert testimony of a forensic
dentist, Dr. Golden, who testified that in a brief review of
15 "study models" of teeth in his office, he found five models
that were consistent with the mark. In Dr. Golden's opinion,
the bite-mark evidence was inconclusive and should be
disregarded, in part because of the angular distortion in the
photograph of the mark. (Richards, supra, 55 Cal.4th at pg.
956.)
Petitioner was convicted of murder, and he subsequently filed a
writ of habeas corpus. At petitioner's evidentiary hearing on
the habeas corpus petition, Dr. Sperber, the forensic dentist
who had testified for the prosecution at trial stated that,
after reviewing all of the photographs of the victim's hand,
he was no longer certain that the mark was a human bite mark.
(Richards, supra, 55 Cal.4th at pg. 957.) Dr. Sperber added
that "[his] opinion today is that [petitioner's] teeth ? are
not consistent with the lesion on the hand." (Ibid.) Dr.
Golden, the forensic dentist who testified for the defense at
trial, described the availability of new computer technology
allowing him to remove angular distortion from photographs.
Dr. Golden concluded that the lesion on the victim's hand
might have been from a dogbite or some other source; in any
case, he "would tend to rule out Mr. Richards ? as the
suspected biter." Other experts testified that new technology
for removing angular distortion from photographs had made it
doubtful that the mark on the victim's hand was a human bite
mark. (Ibid.)
The superior court granted habeas relief. The Court of Appeal
disagreed, and the California Supreme Court granted request
for review.
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The majority stated that "the opinion of Dr. Sperber offered at
trial could qualify as 'false evidence' if, for example, a
generally recognized and relevant advance in science or
technology proved under the preponderance of the evidence
standard that the trial opinion was objectively untrue."
(Richards, supra, 55 Cal.4th at pg. 965.) The petitioner's
habeas evidence at most, calls into question Dr. Sperber's
opinion at trial that petitioner's teeth could have been the
source of the mark, but he did not prove that the opinion was
objectively untrue. Thus, Dr. Sperber's testimony was not
false evidence for purposes of Penal Code section 1473 and
petitioner was not entitled to habeas relief. (Id. at pg.
966.)
Next the court analyzed the habeas petition under the newly
discovered evidence standard, and after analyzing the
cumulative effect of all of the evidence, the court found that
the petitioner had failed to show that the newly discovered
evidence (advance in technology allowing an undistorted view
of victim's hand in photographs) pointed unerringly to his
innocence or reduced culpability, therefore habeas relief
could not be granted.
In his dissenting opinion, Justice Goodwin Liu challenged the
majority opinion stating that "[a]lthough the false evidence
statute makes no distinction between lay and expert testimony,
today's decision imposes novel burdens on a petitioner who
seeks relief under section 1473(b) where false evidence was
introduced through expert testimony." (Richards, supra, 55
Cal.4th at pg. 971.) According to Justice Liu, this is
inconsistent with the California Supreme Court's holdings in
previous cases, that "false evidence" within the meaning of
section 1473(b) is established when a petitioner shows by a
preponderance of the evidence either the falsity of an
expert's testimony or the falsity of an underlying fact
essential to an expert's testimony. (Ibid.)
In the context of lay witnesses, "[w]hen a lay witness in good
faith gives testimony that the witness later concedes he or
she had no perceptual basis to give, that witness has given
false evidence within the meaning of section 1473(b). . . .
Just as the truth or falsity of eyewitness testimony under
section 1473(b) depends on the truth or falsity of underlying
facts concerning the witness's perceptual abilities, the truth
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or falsity of expert testimony depends on the truth or falsity
of underlying facts essential to the expert's inferential
method and ultimate opinion." (Richards, supra, 55 Cal.4th at
pg. 973.) At trial, Dr. Sperber based his opinion on the
single uncorrected photograph of the mark on the victim's hand
to conclude that the petitioner's teeth were a match. "[T]he
expert testimony here was false because it depended crucially
on Dr. Sperber having seen something-a true photographic
representation of the lesion on the victim's hand-that it
turns out he did not actually see. (Id. at pp. 975-976.)
Another issue raised by the dissent is that the majority's
holding raises the standard of proof for false evidence from
preponderance of the evidence (more likely than not) to a
virtual certainty. (In re Malone (1996) 12 Cal. 4th 935.) The
majority stated that the petitioner's evidence could not
definitively rule out his teeth as a possible source of the
mark. However, under the established standard of proof for
"false evidence" petitioner only needed to show that the mark
was inconsistent with his teeth by a preponderance of the
evidence, meaning that he needed to show that it was more
likely than not that his teeth did not cause the mark.
Justice Liu's dissenting opinion concludes that petitioner has
shown by a preponderance of the evidence that the mark on the
victim's hand was not caused by his teeth, thus Dr. Sperber's
trial testimony was based on false evidence. (Richards,
supra, 55 Cal.4th at pg. 979.) He also concludes that it is
reasonably probable that the verdict at the final trial would
have been different without Dr. Sperber's testimony which is
evidenced by the fact that at petitioner's two previous trials
the juries could not reach a verdict, and it was only at his
fourth trial, where the expert testimony regarding bite mark
evidence was introduced, that the jury found the petitioner
guilty. Therefore, petitioner's grant for habeas corpus
should have been granted. (Id. at pp. 981-982.)
This bill specifies that "false evidence" for purposes of
prosecuting a writ of habeas corpus, includes opinions of
experts that have either been repudiated by the expert who
originally provided the opinion at a hearing or trial or that
have been undermined by later scientific research or
technological advances. This bill removes the distinction
between testimony by lay witnesses and testimony of experts
created by the Richards decision but still requires that the
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court make a finding that it is reasonably probable that the
verdict at trial would have been different without the
expert's testimony before granting habeas relief.
4)California Commission on the Fair Administration of Justice's
Report on Forensic Evidence : The California Commission on the
Fair Administration of Justice (CCFAJ) was established in 2004
by Senate Resolution No. 44 (2003-2004 Reg. Sess.) and charged
with the following duties: (1) to study and review the
administration of criminal justice in California to determine
the extent to which that process has failed in the past,
resulting in wrongful executions or the wrongful conviction of
innocent persons; (2) to examine ways of providing safeguards
and making improvements in the way the criminal justice system
functions; and, (3) to make any recommendations and proposals
designed to further ensure that the application and
administration of criminal justice in California is just,
fair, and accurate.
CCFAJ's report on Forensic Science Evidence identified erroneous
forensic identifications of hair, bullets, handwriting,
footprints, bite marks, and venerated fingerprints as the
second most common factor contributing to wrongful
convictions. The report highlighted the following incidents
where the bases for the experts' testimony were later proven
to be erroneous:
"Herman Atkins was convicted of rape in Riverside County in1988,
and sentenced to forty-five years in prison. After serving
eleven years in prison for a crime he did not commit, he was
exonerated by DNA testing conducted in 1999, which showed he
was not the source of semen found on the victim's sweater. His
defense at trial was based on mistaken eyewitness
identification. In testifying at his trial, a criminalist
from the California State Laboratory at Riverside improperly
testified that Atkins was included in a population of only
4.4% of the population that could have contributed the semen.
In truth, because nothing foreign to the victim was seen, no
male in the world could ever be excluded as a potential semen
donor. Hence, 100% of the male population could be
contributors. The serology data, in fact, was
not probative of guilt or innocence but the jury was
nonetheless misled by the state's expert.
[Citation omitted.]"
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"Jeffrey Rodriguez, 28, was freed in San Jose on Monday,
February 5, 2007. He had served 5 years of a 25 years to life
sentence for a robbery under California's "three strikes" law.
In his case, a shaky eyewitness identification was
corroborated by the testimony of a criminalist who claimed his
pants contained a stain with a combination of motor oil and
cooking oil. Such a combination would have connected him to
the crime scene. Subsequent tests by a state crime lab
concluded that the stain was not as described. Although at
his first trial, jurors voted 11-1 to acquit, by the time of
his retrial his family ran out of money, and his lawyer failed
even to call the defense witnesses who had testified at the
first trial. After his conviction was set aside on appeal
because of ineffective assistance of counsel, the prosecution
elected to drop the charges. [Citation omitted.]" (CCFAJ,
Report and Recommendations Regarding Forensic Scientific
Evidence (May 2007), p. 4.)
5)Argument in Support : The American Civil Liberties Union
writes, "[T]he [Richards] court determined that the opinions
of expert witnesses have no bearing on the validity of the
evidence that their opinion provides. Under this
interpretation, a case involving an expert witness whose
testimony serves as the primary basis for a conviction - and
who later realizes the analysis was wrong - cannot be reversed
under any circumstances, no matter how egregious the false
testimony.
"As Justice Goodwin Liu stated in his dissenting opinion, 'There
is no reason to treat expert testimony differently. Just as
the truth or falsity of eye witness testimony under section
1473(b) depends on the truth or falsity of underlying facts
concerning the witness's perceptual abilities, the truth or
falsity of expert testimony depends on the truth or falsity of
underlying facts essential to the expert's inferential method
and ultimate opinion.
"In fact, prior to the 2012 decision in Richards, innocent
individuals could and often did successfully challenge their
convictions when the evidence underlying their original
conviction has been substantially undermined by scientific and
technological advances. One such instance was the case with
Kenneth Marsh.
"Marsh was convicted in November 1983 for the death of
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33-month-old Phillip Buell, who died 10 months earlier from a
head injury sustained when he fell off a couch and hit his
head on a brick hearth. Although the incident was originally
treated as an accidental fall by the San Diego Police
Department, San Diego prosecutors later charged Marsh with the
murder of young Phillip. At trial, the prosecution's medical
experts claimed that the only way Phillip could have sustained
the injuries was through abuse.
"Marsh filed a petition for writ of habeas corpus in October
2002 seeking a new trial after evidence was uncovered that
proved Marsh's innocence. Based on the false evidence
provided in Marsh's original trial, his habeas petition was
granted and new charges were dismissed - he is now a free man.
Had Marsh's case been decided today, it is possible that he
would remain in prison for the tragic accidental death of
Buell."
6)Argument in Opposition : The California District Attorneys
Association writes, "False evidence, the preparation and
offering of which is a felony under Penal Code Sections 132
and 134, is evidence that is presented as a genuine and true
depiction of something other than what it actually represents.
People v. Bamberg (2009) 175 Cal.App. 618, 628. The expert
opinions that SB 1058 seeks to address, on the other hand are
exactly what they claim to be - the opinion of experts.
"Certainly, experts who provide testimony that they know to be
untrue should be prosecuted under the myriad of laws that
already cover perjury, false evidence, and obstruction of
justice. However, an expert opinion that is later invalidated
by scientific or technological advances is not false evidence.
To categorize it as such is to suggest some nefarious intent
on the part of the expert that likely does not exist.
"More generally, we believe that this clarification is
unnecessary, given the permissive nature of Penal Code Section
1473. It is already clear from the language of subdivision
(b) and (d) that a writ of habeas corpus may be filed for any
reason, including the scenario envisioned by SB 1058."
7)Prior Legislation :
a) AB 1593 (Ma), Chapter 809, Statutes of 2012, allows a
writ of habeas corpus to be prosecuted if expert testimony
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relating to intimate partner battering and its effects was
received into evidence but was limited at the trial court
proceedings relating to a prisoner's incarceration for the
commission of a violent felony committed prior to August
29, 1996, and there is a reasonable probability, sufficient
to undermine confidence in the judgment of conviction, that
if the testimony had not been limited, the result of the
proceedings would have been different.
b) SB 1471 (Runner), of the 2007-08 Legislative Session,
would have required habeas petitions in death penalty cases
to be filed within one year and change the standards for
competent counsel. SB 1471 failed passage in Senate Public
Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
California Innocence Project (Co-Sponsor)
Northern California Innocence Project (Co-Sponsor)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Public Defenders Association
Ella Baker Center for Human Rights
Equal Justice Society
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
National Association of Social Workers, California Chapter
Taxpayers for Improving Public Safety
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744