BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 227|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 227
Author: Mitchell (D)
Amended: 4/27/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/21/15
AYES: Hancock, Leno, Liu, McGuire, Monning
NOES: Anderson, Stone
SUBJECT: Grand juries: powers and duties
SOURCE: Author
DIGEST: This bill prohibits a grand jury from inquiring into an
offense that involves a shooting or use of excessive force by a
peace officer, as specified, that led to the death of a person
being detained or arrested by the peace officer, as specified.
ANALYSIS:
Existing law:
1)Provides that one or more grand juries shall be drawn and
summoned at least once per year in each county. (California
Constitution Article I, Section 23.)
2)Requires that in all counties there shall be at least one
grand jury drawn and impaneled in each year. (Penal Code §
905.)
3)Provides that when the grand jury is impaneled and sworn, it
shall be charged by the court and the court shall give the
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grand jurors such information as it deems proper, or as is
required by law, as to their duties and as to any charges for
public offenses returned to the court or likely to come before
the grand jury. (Penal Code § 914(a).)
4)Provides that the grand jury may inquire into all public
offenses committed or triable within the county and present
them to the court by indictment. (Penal Code § 917.)
5)States that if a member of a grand jury knows, or has reason
to believe, that a public offense, triable within the county
has been committed, he may declare it to his fellow jurors,
who may investigate it. (Penal Code § 918.)
6)States that a grand jury may inquire into the case of every
person imprisoned in the jail of the county on a criminal
charge and not indicted. (Penal Code § 919(a).)
7)States that a grand jury shall inquire into the condition and
management of the public prisons within the county. (Penal
Code § 919(b).)
8)States that a grand jury shall inquire into the willful or
corrupt misconduct in office of public officers of every
description within the county. (Penal Code § 919(c).)
This bill prohibits a grand jury from inquiring into an offense
that involves a shooting or use of excessive force by a peace
officer, as specified, that led to the death of a person being
detained or arrested by the peace officer, as specified.
Comments
According to the Author:
SB 227 prohibits the use of a criminal grand jury when
evidence indicates a peace officer's use of excessive
force or a firearm may have contributed to the death
of a person being detained or arrested by the peace
officer.
There is virtually no available information on how
criminal grand juries are used in California; no data
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on the number of cases that are heard, the kinds of
cases that are heard, or the outcomes of those
proceedings. Some counties (specifically Los Angeles
and Santa Clara counties) have adopted policies that
preclude the criminal grand jury being used in cases
where an officer's actions may be the cause of the
death of a suspect. However, these policies have been
instituted at the will of the county's district
attorneys and are subject to change at any time.
The grand jury system has recently come under fire
nationally as several incidents of officer-involved
deaths have resulted in the officers in question being
released without charges. To the public who has
witnessed these incidents, the outcome of the criminal
grand jury proceedings can seem unfair or
inexplicable. The criminal grand jury system lacks
transparency and is not adversarial in nature; No
judges or defense attorneys participate. The rules of
evidence do not apply; there are no cross-examinations
of witnesses, and there are no objections.
When the actions of a peace officer result in the
death of a member of the public, it is crucial that
there is transparency in court proceedings.
Transparency and accountability are key to
establishing and keeping the trust of the public.
Effect of this Legislation. This legislation prohibits a grand
jury from inquiring into an offense that involves a shooting or
use of excessive force by a peace officer that led to the death
of a person being detained or arrested. As discussed in an
opinion by the Attorney General's office, a grand jury typically
hears matters that are brought by the district attorney, but has
the ability to initiate its own investigation.
The accusatory functions of the grand jury authorized
by section 917 and Government Code section 3060 are
usually initiated by the district attorney who is
authorized by section 935 to present evidence of crime
or official misconduct to the grand jury. The
district attorney will have had the offense
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investigated and will have marshalled the evidence
relevant thereto prior to its presentation to the
grand jury. The grand jury then evaluates the
evidence in secret deliberations (see §§ 939, 924.2)
and decides by vote whether to issue an indictment or
accusation. This investigative process on which an
indictment or accusation may be founded may be styled
a formal investigation by the grand jury. All
testimony must be sworn and only evidence which is
admissible over objection in a criminal trial may be
received in such formal investigations. (§ 939.6.) A
stenographic reporter must record the testimony in
shorthand and prepare a transcript thereof. (§§ 938 &
938.1.) An indictment can be found only with the
concurrence of 12 grand jurors (14 for 23 member grand
juries) and 12 votes are also required for an
accusation. (See § 640 & Gov. Code, § 3060.) Grand
jurors voting for an indictment must have heard all of
the evidence presented thereon. (Stern v. Superior
Court (1947) 78 Cal.App.2d 9, 16.)
(Office of the Attorney General of the State of California, No.
83-903, 67 Ops. Cal. Atty. Gen. 58.)
The opinion goes on to state:
The grand jury is not limited to matters initiated by
the district attorney in performing its accusatory
role. Section 918 provides:
"If a member of a grand jury knows, or has reason to
believe, that a public offense, triable within the
county, has been committed, he may declare it to his
fellow jurors, who may thereupon investigate it."
(Id.)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified4/24/15)
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California Attorneys for Criminal Justice
California Public Defenders Association
California State Conference of the National Association for the
Advancement of
Colored People
Friends Committee of Legislation of California
Two Individuals
OPPOSITION: (Verified4/24/15)
California District Attorneys Association
ARGUMENTS IN SUPPORT: The California State Conference of the
National Association for the Advancement of Colored People
states in support:
The highly profiled deaths of Michael Brown and Eric Garner
during the summer of 2014 have created a national debate on
the effectiveness of grand juries. In both cases, grand
juries chose not to indict the officers involved after
local prosecutors were in charge of presenting the case.
Ultimately, the convening of the grand juries in these
cases has provided no justice for the deaths of Eric Garner
and Michael Brown. In high profile cases in which an
officer uses excessive or deadly force, local prosecutors
face a predicament. If they do not choose to file charges
against the officers, they risk the disapproval and
criticism of the community. Conversely, if the local
prosecutor does decide to press charges, they jeopardize
their relationship with law enforcement and their unions.
The option to proceed with a criminal grand jury exonerates
the prosecutor of their duties and allows them to use the
grand jury as a pawn for political cover.
A large portion of prosecutors are experienced trial
lawyers that are capable of indicting any offender.
Prosecutors indict every single day in the state of
California and across the nation without the need for a
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grand jury. Prohibiting criminal grand juries in cases
where law enforcement has used excessive or deadly force
increases transparency and accountability. SB 227 is great
policy in that it would establish trust between the
community, law enforcement and the justice system. SB 227
also facilitates the prosecutor's ability of fully
participate in the judicial process so that true justice
can be served.
ARGUMENTS IN OPPOSITION: The California District Attorneys
Association states:
The grand jury system has been the subject of intense
national scrutiny over the last several months,
particularly after grand juries failed to return
indictments in high-profile cases against police officers
in Ferguson, Missouri and Staten Island, New York. Despite
the calls from many critics to "fix" the grand jury system,
it's important to understand the rules operating in
California grand juries, and consider other alternatives to
the outright elimination of the grand jury as an option for
a particular type of offense.
The California criminal grand jury is decidedly different
and amazingly fairer than its federal counterpart and that
of many other states. First, under PC 939.6(c), the
California grand jury does not allow for hearsay evidence,
with very limited exceptions. Even more importantly,
under PC 939.71, California prosecutors have a legal
obligation to present known exculpatory evidence at the
grand jury or suffer a case dismissal. Neither of these
limitations on prosecutorial power and control are present
in the federal grand jury or most other state grand
juries. Thus, California grand juries offer a fuller
seeking of the truth for all sides - by live testimony -
than the often "assembly-line" grand juries found
elsewhere.
While there may be fundamental deficiencies in the grand
jury systems of other states, we do not believe that those
deficiencies exist in California to justify the outright
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prohibition of criminal grand juries in fatal
officer-involved shootings.
One of the primary criticisms of the grand jury is the lack
of transparency regarding what happens inside the
courtroom. PC 938.1 requires that if an indictment is
returned, a transcript of the grand jury proceedings be
prepared and delivered to the prosecution and defense, and
then opened to the public within 10 days, unless a court
orders otherwise. While in Ferguson, the proceedings were
transcribed and presented to the public, in California (and
New York), the law prevents the transcript from being
released if there is no indictment.
Perhaps a more moderate approach that would still provide
more transparency would be to modify PC 938.1 to allow for
preparation and public disclosure of grand jury transcripts
in law enforcement deadly force cases, at least where the
civilian victim is unarmed. We would welcome the
opportunity to discuss this alternative, or offer language
to that effect.
Prepared by:Jessica Devencenzi / PUB. S. /
5/6/15 17:14:44
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