BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1389|
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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
SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/27/16
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.
ANALYSIS:
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 §
13517.5)
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
(a))
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
(d))
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
interrogation.
Comments
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
process.
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
investigations."
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 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)
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
equipment.
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
Area
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.
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
recorded.
Prepared by:Mary Kennedy / PUB. S. /
5/31/16 20:58:28
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