BILL ANALYSIS                                                                                                                                                                                                    

          |SENATE RULES COMMITTEE            |                       SB 1389|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 

          Bill No:  SB 1389
          Author:   Glazer (D) and Hernandez (D), et al.
          Amended:  5/31/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/5/16
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           AYES:  Lara, Bates, Beall, Hill, McGuire, Mendoza
           NOES:  Nielsen

           SUBJECT:   Interrogation:  electronic recordation

          SOURCE:    American Civil Liberties Union
                     California Attorneys for Criminal Justice

          DIGEST:   This bill requires the electronic recording of the  
          interrogation of any person suspected of murder.

          Existing law:

          1)Provides under 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?."

          2)States that 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  


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            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.

          3)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)

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

          5)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  

          6)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))

          7)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:

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


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               record any statement, the officer shall document that  
               refusal in writing.
             c)   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.
             d)   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.
             e)   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.
             f)   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.
             g)   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))

          1)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))

          2)Provides that the presumption of inadmissibility of statements  
            provided in this section may be overcome, and a person's  


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            statements that were not electronically recorded may be  
            admitted into evidence in a criminal proceeding or a in a  
            juvenile court proceeding, as applicable if the court finds  
            that all of the following apply:

             a)   If the statements are admissible under applicable rules  
               of evidence.
             b)   The prosecution has proven by clear and convincing  
               evidence that the statements were made voluntarily.
             c)   Law enforcement personnel made a contemporaneous audio  
               or audio and visual recording of the reason for not making  
               an electronic recording of the statements.
             d)   This provision does not apply if it was not feasible for  
               law enforcement personnel to make that recording.
             e)   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  

           1) Provides that unless the court finds that an exception  
             applies, all of the following remedies shall be granted as  
             relief for noncompliance:

              a)    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.
              b)    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.
             c)   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))

           1) 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  
             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  


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             provided in Welfare and Institutions Code 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:

           1) Applies the requirements that an interrogation be  
             electronically recorded to any person suspected of committing  
             murder, not just a juvenile.

           2) Provides that for the purposes of the custodial  
             interrogation of an adult, "electronic recording" means a  
             video or audio recording that accurately records a custodial  

          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  
          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  


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          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  
              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)

          Electronic Recording of Interrogations


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          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 extends the provision requiring  
          the electronic recording of the interrogation of juvenile murder  
          suspects to apply to any person suspected of murder.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes

          According to the Senate Appropriations Committee:

           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  
            significant number of local law enforcement agencies 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 $400,000.
           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. 

          SUPPORT:   (Verified5/31/16)

          American Civil Liberties Union (co-source)
          California Attorneys for Criminal Justice (co-source)
          Anti-Recidivism Coalition


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          Ella Baker Center for Human Rights
          Friends Committee on Legislation of California
          Innocence Project
          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Legal Services for Prisoners with Children
          Major Cities Chiefs Association
          A New Path
          A New Way of Life Re-Entry Project
          One individual

          OPPOSITION:   (Verified5/31/16)

          Association of Orange County Deputy Sheriffs 
          California State Sheriffs' Association
          California Statewide Law Enforcement Association 
          Fraternal Order of Police 
          Long Beach Police Officers Association 
          Sacramento County Deputy Sheriffs' Association 

          ARGUMENTS IN SUPPORT:     According to the American Civil  
          Liberties Union:

               False confessions, extracted during law enforcement  
               questioning of suspects, have been identified as the  
               leading cause of wrongful conviction. A recent report  
               found that more than 80 percent of the exonerations  
               involving false confessions were in homicide cases.

               Three injustices result from such false confessions.  
               First, a false confession can cause an innocent person  
               to be incarcerated. Second, when an innocent person is  
               incarcerated, criminal investigations end and the real  
               perpetrator remains free to commit similar, or  
               potentially worse, crimes. Third, victims' families are  
               subjected to double trauma, with the loss of injury of  
               a loved one, the guilt over the conviction of an  
               innocent person. The reforms contained in SB 1389,  
               specifically mandating electronic recording of  
               custodial interrogations of all people suspected of  
               committing murder, will improve criminal investigation  
               techniques, reduce the likelihood of wrongful  


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               conviction, and further the cause of justice in  

               California law enforcement is already familiar with the  
               mandate to record custodial interrogations of murder  
               suspects, as they are already required to conduct such  
               recordings in juvenile cases.  As law enforcement  
               agencies across the state and country will attest,  
               electronic recording of custodial interrogations  
               results in many benefits to law enforcement agencies.   
               First, recording creates an objective, comprehensive  
               record of the interrogation, which helps to avoid  
               disputes as to what was said and one by the  
               participants in the interview and how the participants  
               conducted themselves. Second, recording enhances public  
               confidence in law enforcement, while reducing the  
               number of civilian complaints against officers. And  
               lastly, recording captures subtle details that may be  
               lost if unrecorded, which help law enforcement better  
               in investigate the crime.

          ARGUMENTS IN OPPOSITION:     The California State Sheriffs'  
          Association (CSSA) opposes this bill stating:

               CSSA is not opposed to the video recording of  
               interrogation. That said, SB 1389 could result in  
               statements made in an unrecorded interrogation being  
               given less weight by a jury inasmuch as the bill  
               requires a judge to instruct a jury to view with  
               caution any statements made in such an interrogation.   
               The simple fact that a confession or statement is not  
               recorded on video does not make the statement any less  
               reliable on its face. However, SB 1389 casts a blanket  
               of doubt on any unrecorded statement by effectively  
               questioning the veracity of it based simply on whether  
               it was recorded.

               Additionally, this bill represents another unfunded  
               mandate on law enforcement agencies. Many counties may  
               not currently possess the requisite equipment to comply  
               with the bill, but SB 1389 makes no exception for them.  
               Counties that have multiple custodial facilities,  
               sometimes located a great distance from one another,  
               would have to be duplicatively equipped to avoid an  


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               otherwise righteous confession from being unfairly  
               questioned based simply on the fact it was not video  

          Prepared by:Mary Kennedy / PUB. S. / 
          5/31/16 20:58:28

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