BILL ANALYSIS Ó
SB 1389
Page 1
SENATE THIRD READING
SB
1389 (Glazer and Hernandez)
As Amended August 15, 2016
Majority vote
SENATE VOTE: 32-5
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |7-0 |Jones-Sawyer, | |
| | |Melendez, Lackey, | |
| | |Lopez, Low, Quirk, | |
| | |Santiago | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |17-3 |Gonzalez, Bloom, |Bigelow, Gallagher, |
| | |Bonilla, Bonta, |Obernolte |
| | |Calderon, Chang, | |
| | |Daly, Eggman, Eduardo | |
| | |Garcia, Holden, | |
| | |Jones, Quirk, | |
| | |Santiago, Wagner, | |
| | |Weber, Wood, McCarty | |
| | | | |
| | | | |
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SB 1389
Page 2
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
and that the Legislature encourages law enforcement agencies
to use video recording when available.
3)Clarifies that the provisions requiring recording of an
interrogation for murder, as specified, shall not apply if the
initial interrogation is not related to murder. However, the
bill states that once murder is mentioned or raised, continued
custodial interrogation concerning that offense shall be
electronically recorded pursuant to the provision of this
bill.
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 United States (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
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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.
4)Provides that POST shall prepare guidelines establishing
standard procedures which may be followed by police agencies
and prosecutors in interviewing minor witnesses.
5)Provides that a custodial interrogation of a minor who is
suspected of committing a murder offense shall be
electronically recorded in its entirety.
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.
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
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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
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
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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.
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:
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.
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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; 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.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, potentially significant increase in one-time and
ongoing reimbursable mandated costs (General Fund) to local
agencies to provide video recording of all adult custodial
interrogations in murder investigations. Since the mandate for
electronic recording of minors is already established under
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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 in excess of $400,000. According
to the Department of Justice statistics, there were 1,351 adults
arrested for homicide in 2015.
COMMENTS: 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: 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.
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"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.
"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
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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."
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744 FN:
0004075