BILL ANALYSIS Ó
SB 1389
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Date of Hearing: June 28, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1389 (Glazer) - As Amended May 31, 2016
SUMMARY: Requires the electronic recording of the interrogation
of any person suspected of murder. Specifically, this bill:
1)Applies the requirements that an interrogation be
electronically recorded to any person suspected of committing
murder, not just a juvenile.
2)Specifies 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.
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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
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. (Pen. 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. (Pen. 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. (Pen. Code, § 859.5,
subd. (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
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interrogation in its entirety and the statement is otherwise
admissible. (Pen. Code, § 859.5, subd. (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: (Pen.
Code, § 859.5, subd. (b).)
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
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
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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; and
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.
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. (Pen.
Code, § 859.5, subd. (c).)
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2)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
juvenile court proceeding, as applicable if the court finds
that all of the following apply: (Pen. Code, § 859.5, subd.
(d).)
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; and
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.
1)Provides that unless the court finds that an exception
applies, all of the following remedies shall be granted as
relief for noncompliance: (Pen. Code, § 859.5, subd. (e).)
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,
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provided the evidence is otherwise inadmissible; and
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.
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
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. (Pen. Code, § 859.5, subd. (f).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "videotaping of
interrogations has emerged as a powerful innovation and
fact-finding tool for the criminal justice system. The virtue
of videotaping interrogations, and its strength as a public
policy, lies not only in its ability to develop the strongest
evidence possible to help convict the guilty but also to help
guard against false confessions.
"This tool goes to the heart of the criminal justice system:
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to accurately ascertain the facts surrounding criminal
offenses so that perpetrators are correctly identified and
punished.
"According to national studies, law enforcement agencies that
videotape interrogations report that this practice increases
the quality of evidence available at trial and allows officers
to focus on the suspect during questioning rather than on
note-taking.
"The ability to view a permanent record of the interrogation
is integral to the subsequent assessment of the suspect; his
or her comprehension of the Miranda warnings; and the nature,
setting and circumstances of the interrogation. It is
particularly important to have a permanent record of
interrogations of people with mental disabilities, one of the
groups most prone to false admissions of guilt.
"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, 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.
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"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 or audio
record 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 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:
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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
-----------------------
<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
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murder.
4)Benefits to Law Enforcement: There are a number of benefits
in recording interrogations: it allows the interviewer to
question the suspect without any distractions (notebooks,
statement forms, or typewriters), observe the suspect's
demeanor and body language, and use the recordings as training
for other personnel. Recording interrogations also reduces
allegations of coerced or false confessions. A National
Institute for Justice study found that law enforcement
agencies experienced 43.5% fewer allegations of improper
police tactics as a result of recording interrogation
sessions. This practice also enhances the reliability of any
statements as judges and juries are able to view the tape
themselves.
5)Fifth Amendment Protections: The Fifth Amendment of the U.S.
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.
To establish a valid waiver of Miranda rights, the prosecution
must show by a preponderance of the evidence that the waiver
was knowing, intelligent, and voluntary. [People v. Williams
(2010) 49 Cal.4th 405, 425.] Voluntariness of a juvenile's
confession is to be treated differently than an adult's. The
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court must consider and weigh the age, intelligence, education
and ability to comprehend when determining whether the
confession was a product of free will and an intelligent
waiver of the minor's Fifth Amendment rights. [In re Aven S.
(1991) 1 Cal.App.4th 69, 75.]
6)Arguments in Support:
a) According to the American Civil Liberties Union, "The
ACLU of California of proud to cosponsor SB 1389, an
important bill that will require the electronic recording
of custodial interrogations of any person suspected of
committing murder.
"False confessions, extracted during law enforcement
questioning of suspects, have been identified as a leading
cause of wrongful conviction.<3> A recent report found
that more than 80 percent of the exonerations involving
false confessions were in homicide cases.<4>
"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 the trauma, with the loss or injury of a loved one,
and the guilt over the conviction of an innocent person.
The reforms contained in SB 1389, specifically mandating
-------------------------
<3> Richard A. Leo, False Confessions: Causes, Consequences, and
Implications, 37 Journal of the American Academy of Psychiatry
and the Law (2009), available at
http://www.jaapl.org/content/37/3/332.full.pdf.
<4> National Registry of Exonerations, Exonerations in 2015
(2016), available at
http://www.law.umich.edu/special/exoneration/Documents/Exoneratio
ns_in_2015.pdf.
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electronic recording of custodial interrogations of all
people suspected of committing murder, will improve
criminal investigation techniques, reduce the likelihood of
wrongful 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.<5> 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 done 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 investigate the crime.
"Because of these benefits, over 500 police departments
throughout the country require the taping of interrogations
and confessions.<6> The American Federation of Police and
Concerned Citizens, International Association of Chiefs of
Police, Major Cities Chiefs Association, and National
District Attorney's Association are all in support of
electronic recording of custodial interrogations.<7> Even
before the passage of SB 569, a substantial number of
departments in California were already recording a majority
-------------------------
<5> See SB 569 (Ted Lieu), Chapter 799, Statutes of 2013.
<6> California Commission on the Fair Administration of Justice,
Report and Recommendations Regarding False Confessions (2006).
<7> Thomas P. Sullivan, A Compendium of the Law Relating to
Electronic Recording of Custodial Interrogations (2016).
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of custodial interrogations, including county sheriffs of
Alameda, Butte, Contra Costa, El Dorado, Orange, Placer,
Sacramento, San Bernardino, San Joaquin, Santa Clara
(including all police agencies operating within the
county), Ventura, and Yolo counties, as well as numerous
municipal police departments.<8>
"SB 1389 is important step in ensuring that confessions
made by defendants charged with the most serious crimes are
accurate and that the right person is held to answer for
the crime in question."
b) According to the California Attorneys for Criminal
Justice, "This bill would expand Penal Code 859.5 to all
persons suspected of committing a crime of homicide.
"Under Penal Code 859.5, a custodial interrogation of a
minor that is suspected of committing murder is required to
be electronically recorded in its entirety. This law was
passed to provide protection for this vulnerable group that
needs protection based on their age, cognitive development,
and due to the adversarial nature of custodial
-------------------------
<8> California Commission on the Fair Administration of Justice,
supra note 4.
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interrogations.
"The National Registry of Exonerations, a project of the
University of Michigan Law School, tracks the number of
wrongful convictions in the United States. Since 1989,
there have been at least 1,700 exonerations nationwide.
According to a national study conducted by Professor Samuel
Gross of the University of Michigan, Professor Gross
identified that false confessions extracted during police
questioning of suspects as the second most frequent cause
of wrongful convictions.
"SB 1389 would require the electronic recordation of
custodial interrogations of all persons, whether a minor or
an adult, suspected of a homicide. Videotaping of
interrogations have become commonplace and an accepted best
practice among many law enforcement agencies around the
nation and in California. This recording not only guards
against false confessions, but also develops the strongest
evidence possible to help convict the guilty.
"The National Innocence Project has provided research
relating to contributing factors causing false confessions
including: real or perceived intimidation of the suspect by
law enforcement; use of force by law enforcement,
compromised reasoning ability of the suspect, due to
exhaustion, stress, mental limitations, or limited
education; devious interrogation techniques, such as untrue
statements about the presence of incriminating evidence,
and fear that failure to confess will lead to a harsher
punishment.<9>
-------------------------
<9>
http://www.innocenceproject.org/free-innocent/improve-the-law/fac
t-sheets/false-confessions-recording-of-custodial-interrogations
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"Besides being prudent public policy, recording these
custodial interrogations benefit both the suspect and law
enforcement. This policy ensures that the suspect's rights
are protected during the interrogation. Also, this
recording creates a deterrent for law enforcement to use
coercive techniques as they are aware of the oversight and
accountability. Furthermore, the record provides protection
for law enforcement if the suspect suggest improper actions
during the interrogation. This recording may also increase
public confidence in law enforcement by reducing the number
of citizen complaints against law enforcement.
"By implementing this best practice, both the alleged
suspect and law enforcement benefit from this oversight and
protections. For these reasons CACJ is proud to co-sponsor
SB 1389."
7)Prior Legislation:
a) SB 569 (Lieu) Chapter 799 of the Statutes of 2013,
required the custodial interrogation of juveniles suspected
of committing murder to be electronically recorded in its
entirety.
b) SB 1300 (Alquist), of the 2011-12 Legislative Session,
would have required the electronic recordation of custodial
interrogations of both adults and minors suspected of
serious or violent felonies. SB 1300 was held on the
Senate Appropriations Committee's Suspense File.
c) SB 1590 (Alquist), of the 2007- 08 Legislative Session,
would have required the electronic recordation of any
custodial interrogation of an individual suspected of
homicide or a violent felony. SB 1590 was held on the
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Senate Appropriations Committee's Suspense File.
d) SB 511 (Alquist), of the 2007-08 Legislative Session,
would have required custodial interrogations of violent
felony suspects to be electronically recorded. SB 511 was
vetoed.
e) SB 171 (Alquist), of the 2005- 06 Legislative Session,
would have required the electronic recording of all
custodial interrogations relating to homicides and all
violent felony offenses. SB 171 was vetoed.
f) AB 161 (Dymally), Chapter 754, Statutes of 2003, would
have encouraged law enforcement officials to videotape and
record the interrogation of a person accused of, arrested
for, or charged with a felony. AB 161 was later amended to
a different subject matter.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union (Co-sponsor)
California Attorneys for Criminal Justice (Co-sponsor)
California Public Defenders Association (Co-sponsor)
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Northern California Innocence Project (Co-sponsor)
A New PATH
Anti-Recidivism Coalition
California Innocence Project
Drug Policy Alliance
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Innocence Project
Legal Services for Prisoners with Children
Major Cities Chiefs Association
1 private individual
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Opposition
None
Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)
319-3744