BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1389 Hearing Date: April 5, 2016
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|Author: |Glazer |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Interrogation: Electronic Recordation
HISTORY
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
2012
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
PURPOSE
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
(a))
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
circumstances:
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
(d))
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.
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
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.
COMMENTS
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
process.<1>
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
investigations."<2>
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
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<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.
(www.law.northwestern.edu/wrongfulconvictions/caused/custodialint
errogations.htm)
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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 www.ccfaj.org)
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
murder.
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