BILL ANALYSIS                                                                                                                                                                                                    Ó

          |SENATE RULES COMMITTEE            |                       SB 1389|
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                                UNFINISHED BUSINESS 

          Bill No:  SB 1389
          Author:   Glazer (D) and Hernandez (D), et al.
          Amended:  8/15/16  
          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

           SENATE FLOOR:  32-5, 6/2/16
           AYES:  Allen, Anderson, Bates, Beall, Berryhill, Block,  
            Cannella, De León, Glazer, Hall, Hancock, Hernandez,  
            Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu,  
            McGuire, Mitchell, Monning, Moorlach, Nguyen, Pan, Pavley,  
            Roth, Stone, Wieckowski, Wolk
           NOES:  Fuller, Gaines, Morrell, Nielsen, Vidak
           NO VOTE RECORDED:  Galgiani, Mendoza, Runner

           ASSEMBLY FLOOR:  63-13, 8/23/16 - See last page for vote

           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.

          Assembly Amendments exempt from the recording requirement the  
          interrogation of a person who is in custody on a murder charge  
          when the interrogation is not related to the murder.


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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  

           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  

           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. (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  
                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  


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                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 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:


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              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  

           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. (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


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          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  
          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  


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              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

          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 Assembly Appropriations Committee, there would  
          be 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  


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          murder investigations.  Since 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 in  
          excess of $400,000.  According to the Department of Justice  
          statistics, there were 1,351 adults arrested for homicide in  

          SUPPORT:   (Verified8/16/16)

          American Civil Liberties Union (co-source)
          California Attorneys for Criminal Justice (co-source)
          A New Path
          A New Way of Life Re-Entry Project
          Anti-Recidivism Coalition
          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
          One individual

          OPPOSITION:   (Verified8/16/16)

          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  


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          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 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 investigate the crime.

          ARGUMENTS IN OPPOSITION:     The California State Sheriffs'  


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

           ASSEMBLY FLOOR:  63-13, 8/23/16
           AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom,  
            Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau,  
            Chiu, Chu, Cooley, Dababneh, Daly, Dodd, Eggman, Cristina  
            Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon,  
            Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,  
            Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, McCarty, Medina, Melendez, Mullin,  
            Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Waldron,  
            Weber, Wilk, Wood, Rendon
           NOES: Travis Allen, Bigelow, Brough, Chávez, Cooper, Dahle,  
            Beth Gaines, Gallagher, Gatto, Grove, Obernolte, Patterson,  
           NO VOTE RECORDED: Frazier, Gray, Mayes, Williams


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          Prepared by:Mary Kennedy / PUB. S. / 
          8/23/16 20:19:34

                                   ****  END  ****