BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1087 Hearing Date: March 29, 2016
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|Author: |Anderson |
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|Version: |February 17, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Evidence: Production of Business Records
HISTORY
Source: California District Attorneys Association
Prior Legislation:None
Support: California Police Chiefs Association
Opposition:None known
PURPOSE
The purpose of this bill is to provide for the admissibility of
business documents produced by search warrant.
Existing law provides that if the original records would be
admissible in evidence if the custodian or other qualified
witness had been present and testified in matters stated in an
affidavit accompanying copies of business records then the
affidavit is admissible as evidence of the matters state therein
and are presumed to be true. (Evidence Code § 1562)
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Existing law provides that when a subpoena duces tecum is served
upon the custodian of records of a business in an action in
which the business is neither a party nor the place where the
action is alleged to have taken place, it is sufficient
compliance if the custodian delivers by mail or otherwise a
true, legible and durable copy of all the records described in
the subpoena to the clerk of the court together with an
affidavit within five days of receipt. (Evidence Code §1560)
This bill would in addition provide that if a search warrant for
business records is served upon the custodian of records in an
action or investigation in which the business is neither a party
nor the place where any cause of action is alleged to have
arisen, the warrant will be deemed executed if the business
cause the delivery of records described in the warrant to the
law enforcement agency if the custodian delivers by mail or
otherwise a true, legible, and durable copy of all the records
described in the search warrant, together with an affidavit
within five days or within such other time as set forth in the
warrant.
Existing law provides what shall be in an affidavit accompanying
records submitted by a business in response to a subpoena duces
tecum. (Evidence Code §1561)
This bill provides that this section shall also apply to
affidavits accompanying records submitted by a business in
response a search warrant.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
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design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
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Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
When a prosecuting office is doing a criminal
investigation, most business records are obtained via
search warrant because there is very limited subpoena
power until criminal charges are actually filed. In
fact, it's not uncommon for records to be destroyed
between the date the search warrant is executed and the
time charges are eventually filed.
Business record, whether produced pursuant to a
subpoena or search warrant, are usually provided with
an accompanying affidavit intended to comply with
Evidence Code sections 1560-1562. If the records were
produced in response to a subpoena, these sections
govern admissibility of the records at trial without
live testimony from the custodian of record.
Unfortunately, since sections 1560 and 1561 only refer
to the admissibility of documents obtained by subpoena
and not by search warrant, the search warrant records
may not be admitted at trial without testimony by the
custodian of records-even if the exact same records are
produced and even if they are provided with the exact
same affidavit.
Prosecutors then face two choices. They can rely on EC
1560 et seq for admissibility, which requires them,
after filing criminal charges, to subpoena the exact
same records we obtained via search warrant. If these
records still exist, they must be re-copied, re-sent,
and re-discovered. This is a significant expenditure of
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material and human resources on the part of the court,
the attorneys, and the target of entities of the
subpoena.
Alternatively, or if the records have been destroyed in
the intervening period, they must procure live
testimony from the custodian of records in order to
make the records received in response to the search
warrant admissible. This requires the target entity to
incur the cost and inconvenience of sending a live
witness to testify.
SB 1087 seeks to solve this problem by amending the
Evidence Code to refer to documents obtained by search
warrants as well as subpoena. This would remove an
artificial barrier to admissibility, promote trial
efficiency by eliminating an otherwise unnecessary
witness (and a hearing on the subpoena), and save
resources for the court as well as the businesses that
comply with records requests.
2. Admissibility of Business Records
As stated in the author's statement, business records that are
submitted in a case pursuant to a subpoena duces tecum and
accompanied by the appropriate affidavit are admissible in the
criminal or civil case for which they were requested. However,
since a subpoena dusces tecum can only be used once a case is
filed, law enforcement will use a search warrant to seek
documents while in the investigative stage of the case and those
documents are not admissible under existing law, even though
their veracity is identical to those submitted by subpoena.
Because they are inadmissible, law enforcement must either get
the custodian of record to testify in court as to the veracity
of the documents or make a second request for the same documents
with a subpoena duces tecum and thereby get another copy of the
documents with the appropriate affidavit. This bill provides
that documents submitted in response to a search warrant, with
the appropriate affidavit, are admissible in the same manner as
those documents submitted in response to a subpoena duces tecum.
-- END -
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