BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1389       Hearing Date:    April 5, 2016    
          |Author:    |Glazer                                               |
          |Version:   |February 19, 2016                                    |
          |Urgency:   |No                     |Fiscal:    |Yes              |
          |Consultant:|MK                                                   |
          |           |                                                     |

                  Subject:  Interrogation:  Electronic Recordation


          Source:   American Civil Liberties Union; Northern California  
          Innocence Project

          Prior Legislation:SB 569 (Lieu) Chapter 799, Stats. 2013
                         SB 1300 (Alquist) held in Senate Appropriations  
                                     SB 1590 (Alquist) held Senate  
          Appropriations 2008
                         SB 511 (Alquist) - Vetoed, 2007
                                     SB 171 (Alquist) - Vetoed, 2006
                                     AB 161 (Dymally) As introduced 2003

          Support:  John K. Van de Kamp, Former California Attorney  
                    General; Ella Baker Center for Human Rights; Friends  
                    Committee on Legislation of California; Innocence  
                    Project; Judge Ladoris H. Cordell (Ret.); Lawyers'  
                    Committee for Civil Rights of the San Francisco Bay  
                    Area; Legal Services for Prisoners with Children;  
                    Major Cities Chiefs Association; A New Path; A New Way  
                    of Life Re-Entry Project; one individual


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          Opposition:California State Sheriffs' Association



          The purpose of this bill is to require the electronic recording  
          of the interrogation of any person suspected of murder.

          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 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.  
          (Penal Code  13510)

          Existing law provides that POST shall prepare guidelines  
          establishing standard procedures which may be followed by police  
          agencies and prosecutors in interviewing minor witnesses. (Penal  
          Code  13517.5)

          Existing law provides that notwithstanding provisions  
          prohibiting eavesdropping, any district attorney, or any  
          assistant, deputy or investigator of the Attorney General or any  
          district attorney any officer of the California Highway Patrol,  
          any chief of police or city and county, any sheriff,  
          undersheriff or deputy sheriff regularly employed and paid in  
          that capacity by a county, police officer of the County of Los  


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          Angeles, or any person acting pursuant to the direction of one  
          of these law enforcement officers acting within the scope of his  
          or her authority, is not prohibited from overhearing or  
          recording any communication?(Penal Code  633)
          Existing law provides that a custodial interrogation of a minor  
          who is suspected of committing a murder offense shall be  
          electronically recorded in its entirety. (Penal Code  859.5  

          Existing law provides that a statement that is electronically  
          recorded as required creates a rebuttable presumption that the  
          electronically recorded statement was, in fact, given and was  
          accurately recorded by the prosecution's witnesses, provided the  
          electronic recording was made of the custodial interrogation in  
          its entirety and the statement is otherwise admissible. (Penal  
          Code  859.5 (a))
           Existing law provides that the requirement for the electronic  
          recordation of a custodial interrogation pursuant to this  
          section shall not apply under any of the following  

                 Electronic recording is not feasible because of exigent  
               circumstance. The exigent circumstances shall be recorded  
               in the police report.

                 The person to be interrogated states that he or 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 interrogations that he or she  
               will not participate in further interrogation unless  
               electronic recording ceases.  If the person refuses to  
               record any statement, the officer shall document that  
               refusal in writing.

                 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  
               the intent to avoid the requirements of this section.


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                 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 a murder. If during a custodial interrogation,  
               the individual reveals the facts and circumstances giving  
               the officer reason to believe a murder may have been  
               committed, continued interrogation concerning that offense  
               shall be electronically recorded.

                 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.

                 The failure to create an electronic recording of the  
               entire custodial interrogation was the result of a  
               malfunction of the recording device, despite reasonable  
               maintenance of the equipment, and timely repair or  
               replacement was not feasible.

                 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 of spontaneous  
               statements made in response to questions asked during the  
               routine processing of the arrest of the person. (Penal Code  
                859.5 (b))

          Existing law provides that if the prosecution relies on an  
          exception 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. (Penal  
          Code  859.5 (c))

          Existing law provides that the presumption of inadmissibility of  
          statements provided in this section may be overcome, and a  
          person's statements that were not electronically recorded may be  
          admitted into evidence in a criminal proceeding or a in a  


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          juvenile court proceeding, as applicable if the court finds that  
          all of the following apply:

                 If the statements are admissible under applicable rules  
               of evidence.

                 The prosecution has proven by clear and convincing  
               evidence that the statements were made voluntarily.

                 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.

                 The prosecution has proven by clear and convincing  
               evidence that one or more of the exceptions existed at the  
               time of the custodial interrogation. (Penal Code  859.5  

          Existing law provides that unless the court finds that an  
          exception applies, all of the following remedies shall be  
          granted as relief for noncompliance:

                 Failure to comply with any requirements of this section  
               shall be considered by the court in adjudicating motions to  
               suppress a statement of a defendant made during or after a  
               custodial interrogation.
                 Failure to comply with any of the requirements of this  
               section shall be admissible in support of claims that the  
               defendant's statement was involuntary or unreliable,  
               provided the evidence is otherwise inadmissible.

                 If the court admits into evidence a statement made  
               during the custodial interrogation that was not  
               electronically recorded in compliance with this section,  
               the court, upon request of the defendant, shall give to the  
               jury cautionary instructions.  (Penal Code  859.5 (e))

          Existing law provides that the interrogating entity shall  
          maintain the original or an exact copy of an electronic  
          recording made of an electronic recording made of a custodial  
          interrogation until a conviction for any offense relating to the  


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          interrogation is final and all direct and habeas corpus appeals  
          are exhausted or the prosecution for that offense is barred by  
          law, or in a juvenile court proceeding, otherwise provided in  
          WIC Section 626.8. The interrogating entity may make one or more  
          true, accurate, and complete copies of the electronic recording  
          in a different format. (Penal Code  859.5 (f))

          This bill would apply the requirements that an interrogation be  
          electronically recorded to any person suspected of committing  
          murder, not just a juvenile.

          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  

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          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  


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          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
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          1.Need for This Bill

          According to the author:

               Unfortunately, where there has been an absence of  
               videotaped interrogations, there's also been a rise in  
               convictions later overturned.

               Wrongful convictions have become a nationwide,  


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               high-profile issue, reflected in the more than 1,730  
               exonerations since 1989, according to the National  
               Registry of Exonerations, a project of the University  
               of Michigan Law School. Many of these wrongful  
               convictions are based on an ever-increasing number of  
               false confessions, particularly in homicide cases.

               False confessions were identified as the second most  
               frequent cause of wrongful convictions - behind false  
               eyewitness testimony - in a national study conducted by  
               Professor Samuel Gross of the University of Michigan.

               2015 saw a record number of exonerations in the United  
               States: 149.  This record continued the rapid increase  
               in exonerations over the past several years.   
               Wrongfully convicted individuals exonerated in 2015  
               served an average of 14.5 years in prison.

               2015 also set a record for exonerations resulting from  
               false confessions: 27. Of these 27 false confessions,  
               22 were in cases involving homicide. 

               Because of the increased possibility of false  
               confessions in homicide cases-cases with very high  
               stakes for society, victims' families, and wrongfully  
               convicted individuals-we must have policies in place  
               that ensure accurate documentation of interrogations in  
               these cases so that the best possible evidence is  
               presented in the courtroom.

               The requirement in Senate Bill 1389 to videotape the  
               custodial interrogations of any person suspected of  
               homicide will improve criminal investigation  
               techniques, document false confessions when they occur,  
               reduce the likelihood of wrongful conviction, and  
               further the cause of justice in California.
          2.   False Confessions
          Every year many people are wrongly convicted because of false  
          confessions. Defendants also often make motions to exclude  
          statements made during an interrogation arguing that they were  
          coerced, there was abuse or the statement was not made.  Studies  


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          have shown that recording of interrogations puts an end to  
          disputes regarding statements and also has additional benefits.

          In March 2000, after declaring a moratorium on executions, the  
          then Governor of Illinois George Ryan appointed a Commission to  
          see what reforms to the death penalty would be necessary to make  
          it fair and just in Illinois.  After 24 months of study the  
          Commission set forth 85 recommendations. Among the  
          recommendations of Illinois Governor's Commission on Capital  
          Punishment (Illinois Commission) was the recommendation that:

              Custodial interrogations of a suspect in a homicide case  
              occurring at a police facility should be videotaped.   
              Videotaping should not include merely the statement made  
              by the suspect after interrogation, but the entire  
          Illinois followed the recommendation, becoming "the first state  
          (recently joined by Maine and the District of Columbia) to  
          require by statute electronic recording of custodial  
          interrogations in custodial interrogations in homicide  

          On July 25, 2006 the California Commission on the Fair  
          Administration of Justice (CCFAJ) issued a "Report and  
          Recommendations Regarding False Confessions."  The Commission  
          had a public hearing on June 21, 2006 and studied the reports of  
          the commissions and task forces assembled in other states  
          addressing the issue of false confessions, as well as research  
          documenting 125 cases of false confessions by suspects who were  
          indisputably proven to be innocent.   CCFAJ found that:

              Although it may seem surprising that factually innocent  
              persons would falsely confess to the commission of  
              serious crimes, the research provides ample evidence  
          <1> Recommendation 4, Report of the Illinois Governor's  
          Commission on Capital Punishment (April 2002).
          <2> Sullivan, Thomas P.; "Police Experiences with Recording  
          Custodial Interrogations" A special report by: North western  
          University School of Law Center on Wrongful Convictions, Summer  
          2004, p. 2.  


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              that this phenomenon occurs with greater frequency than  
              widely assumed. The research of Professors Steven Drizin  
              and Richard A. Leo identifies 125 cases which occurred  
              between 1972 and 2002, with 31% of them occurring in the  
              five years previous to 2003. Eight of these examples, or  
              6 % of the sample, occurred in California cases.  
              (California Commission on the Fair Administration of  
              Justice, "Report and Recommendations Regarding False  
              Confessions" p.2

          Like the Illinois Commission CCFAJ found that recording  
          interrogations not only helps reduce false confessions but that:

              There are a number of reasons why the taping of  
              interrogations actually benefits the police departments  
              that require it.  First, taping creates an objective,  
              comprehensive record of the interrogation.  Second,  
              taping leads to the improved quality of interrogation,  
              with a higher level of scrutiny that will deter police  
              misconduct and improve the quality of interrogation  
              practices.  Third, taping provides the police protection  
              against false claims of police misconduct.  Finally,  
              with taping, detectives, police managers, prosecutors,  
              defense attorneys and judges are able to more easily  
              detect false confessions and more easily prevent their  
              admission into evidence. (Id. p. 4)

          3.   Electronic Recording of Interrogations
          As of January 2014, the law requires the electronic recording of  
          the interrogation of a juvenile suspected of murder.  In  
          addition, there are a number of jurisdictions in California that  
          voluntarily, at least some of the time, electronically record  
          other interrogations.  This bill would extend the provision  
          requiring the electronic recording of the interrogation of  
          juvenile murder suspects to apply to any person suspected of  

                                      -- END -


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