BILL ANALYSIS                                                                                                                                                                                                    

                                                                    SB 1389

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          1389 (Glazer and Hernandez)

          As Amended  August 15, 2016

          Majority vote

          SENATE VOTE:  32-5

          |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  |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |


                                                                    SB 1389

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          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  

          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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          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  

          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  
          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  

          "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  

          "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: