BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1389 (Glazer) - Interrogation:  electronic recordation
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          |Version: February 19, 2016      |Policy Vote: PUB. S. 7 - 0      |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date:  April 18, 2016   |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File.

          Summary:  SB 1389 would extend the existing requirement to  
          electronically record a custodial interrogation of a minor  
          suspected of committing murder to apply to any person suspected  
          of committing murder, as specified.

            Local law enforcement agencies  :  Potentially significant  
            increase in one-time and ongoing state-reimbursable local  
            costs (General Fund) in excess of hundreds of thousands of  
            dollars annually to electronically record interrogations of  
            detained adults suspected of committing murder. As the mandate  
            for electronic recording of minors is already established  
            under existing law, any additional state-reimbursable costs  
            attributable to this bill would be those costs incurred for  
            recording adults above the existing mandate. Given the  


          SB 1389 (Glazer)                                       Page 1 of  
            significant number of local law enforcement agencies (nearly  
            400) subject to the mandate, and the significant increase in  
            volume of required recordings, even the minimal mandate  
            reimbursement claim of $1,000 would result in costs of nearly  
            State agencies  :  Minor ongoing costs (General Fund/Special  
            Fund*) to state agencies including the CHP, CDCR, and DOJ to  
            extend the existing recordation requirement to adults.  
            Agencies have indicated no new costs would be incurred for  
            Trial courts  :  Potentially significant future trial court cost  
            savings (General Fund) to the extent mandated electronic  
            interrogation recording results in fewer false confessions,  
            expedited trials, and avoided litigation involving  
            interrogation issues. 

          *Motor Vehicle Account

          Background:  Existing law requires the electronic recording of the entire  
          custodial interrogation of a minor who is in a fixed place of  
          detention, as defined, and who, at the time of the  
          interrogation, is suspected of committing or accused of  
          committing murder. (Penal Code  859.5(a).) 
          Existing law sets forth various exceptions from the requirement  
          to electronically record the interrogation, as follows:

                 Electronic recordation is not feasible because of  
               exigent circumstances, and the exigent circumstances are to  
               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.
                 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.
                 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  


          SB 1389 (Glazer)                                       Page 2 of  
               committed a murder. 
                 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. (PC  859.5(b).)

          In its report entitled "Report and Recommendations Regarding  
          False Confessions (July 2006)," the California Commission on the  
          Fair Administration of Justice (CCFAJ) noted that false  
          confessions were identified as the second most frequent cause of  
          wrongful convictions in a national study previously reviewed by  
          the CCFAJ. The CCFAJ report states: 

             "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. The cost of  
             recording custodial interrogations must be measured  
             against the cost of false confessions, which takes a  
             devastating human toll on those who are wrongfully  
             charged, their families, the victims of crime, and their  
             families. Closing a case with conviction of the wrong  
             person based upon a false confession also leaves the real  


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             perpetrator at large, to victimize others. The cost of  
             litigating claims of police misconduct that might have  
             been deterred by taping, and the savings in avoiding false  
             claims of police misconduct should, in the long run, more  
             than pay the costs of implementation of a mandate that all  
             custodial interrogation in serious criminal cases be  
             electronically recorded."

          Proposed Law:  
           This bill would extend the existing requirement to  
          electronically record the custodial interrogation of minors  
          suspected of committing murder to apply to all persons suspected  
          of committing murder, as specified. This bill would retain the  
          exceptions from electronic recordation under existing law for  
          minors to apply to all persons.

          Legislation:  SB 569 (Lieu) Chapter 799/2013 requires the  
          electronic recordation of the interrogation of any minor  
          suspected of committing murder.
          SB 1300 (Alquist) 2012 would have required the electronic  
          recordation of custodial interrogations of both adults and  
          minors suspected of serious or violent felonies. This bill was  
          held on the Suspense File of this Committee.

          SB 1590 (Alquist) 2008 would have required the electronic  
          recordation of any custodial interrogation of an individual  
          suspected of homicide or a violent felony. This bill was held on  
          the Suspense File of this Committee. 

          SB 511 (Alquist) 2007 would have required custodial  
          interrogations of violent felony suspects to be electronically  
          recorded. This bill was vetoed by the Governor with the  
          following message: 
          I am returning Senate Bill 511 without my signature. While  
          reducing the number of false confessions is a laudable goal, I  
          cannot support a measure that would deny law enforcement the  
          flexibility necessary to interrogate suspects in homicide and  
          violent felony cases when the need to do so is not clear. Police  
          interrogations are dynamic processes that require investigators  
          to use acumen, skill and experience to determine which methods  
          of interrogation are best for the situation. This bill would  
          place unnecessary restrictions on police investigators. 


          SB 1389 (Glazer)                                       Page 4 of  

          SB 171 (Alquist) 2006, a measure similar to SB 511, was also  
          vetoed by the Governor.

          Comments:  By requiring the electronic recordation of custodial  
          interrogations of any person suspected of committing murder,  
          this bill expands upon the existing mandate on local agencies  
          that requires the electronic recordation of interrogations of  
          minors suspected of committing murder. It is unknown how many  
          additional electronic recordings this bill could require, as in  
          addition to individuals arrested for murder (on average 5,100  
          persons annually under PC  187,189), a substantially larger  
          population of persons detained and suspected of committing  
          murder would be subject to the electronic recording requirement.
          To the extent the existing mandate to electronically record the  
          custodial interrogations of minors resulted in the purchase of  
          equipment, storage, and possibly additional facility space,  
          those costs would not be attributable to this bill. However, any  
          additional staff time, storage needs, administrative costs to  
          catalogue and preserve the additional recordings, and additional  
          equipment/facility requirements related to the significant  
          increase in electronic recordings specific to adults would be  
          attributable to this bill and could potentially require  
          reimbursement from the state. With 58 sheriff departments and  
          over 330 police departments statewide, even the minimal mandate  
          reimbursable claim amount of $1,000 per department would equate  
          to nearly $400,000 in additional costs. As "electronic  
          recording" is defined as a video recording, additional storage  
          costs for a greater number of interrogations would vary based on  
          the method of video recordation utilized by each entity.

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