BILL ANALYSIS
AB 100
Page 1
Date of Hearing: April 5, 2005
Counsel: Steven Meinrath
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 100 (Cohn) - As Introduced: January 11, 2005
As Proposed to be Amended in Committee
SUMMARY : Allows, in any criminal case in which the defendant
is in custody, with the consent of the court, all hearings,
except as specified, to be held without the defendant being
physically present in the court room but appearing by way of
audio-video communication. Specifically, this bill :
1)Provides that in any case in which the defendant is charged
with a misdemeanor or a felony and is currently incarcerated
in a county jail, the law enforcement agency having
jurisdiction over the defendant may, with the consent of the
court in which the defendant will be appearing, arrange for
all court appearances in municipal or superior court, except
for the preliminary hearing, trial, judgment and sentencing,
and motions to suppress, to be conducted by two-way,
electronic audio-video communication between the defendant and
the courtroom in lieu of the physical presence of the
defendant in the courtroom.
2)Permits the court to issue an order requiring the defendant to
be physically present in the courtroom in those cases where
the court finds circumstances that require the physical
presence of the defendant in the courtroom.
3)Requires that, for those court appearances that the law
enforcement agency having jurisdiction over the defendant
determines to conduct by two-way electronic audio-video
communication, the law enforcement agency shall arrange for
the two-way electronic audio-video communication between the
municipal or superior court and the county jail. The law
enforcement agency shall ensure that properly maintained
equipment and adequately trained staff are available at the
county jail and that appropriately trained court staff are
available in the courtroom.
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4)States that if the defendant is represented by counsel, the
attorney shall be present with the defendant at the initial
court appearance and arraignment, and may enter a plea during
the arraignment. However, if the defendant is represented by
counsel at an initial hearing in superior court in a felony
case and if the defendant does not plead guilty or nolo
contendere to any charge, the attorney shall be present with
the defendant; if the attorney is not present with the
defendant, the attorney shall be present in court during the
hearing.
5)Provides that in lieu of the physical presence of the
defendant's counsel at the institution with the defendant, the
court and the department or law enforcement agency shall
establish a confidential telephone and facsimile transmission
line between the court and the institution for communication
between the defendant's counsel in court and the defendant at
the institution. In this case, counsel for the defendant
shall not be required to be physically present at the
institution during any court appearance conducted via
electronic audio-video communication.
EXISTING LAW :
1)Allows that, in any case in which the accused is charged with
a misdemeanor only, he or she does not need to personally
appear in court but may choose to have a lawyer appear on his
or her behalf, except in cases involving domestic violence or
violation of a protective order. If the accused agrees, the
initial court appearance, arraignment, and plea may be by
video, as specified. [Penal Code Section 977(a)(1).]
2)Requires that, if the accused is charged with a misdemeanor
offense involving domestic violence, as specified, or a
misdemeanor violation of a protective order, the accused shall
be present for arraignment and sentencing, and at any time
during the proceedings when ordered by the court for the
purpose of being informed of the conditions of a protective
order, as specified. [Penal Code Section 977(a)(2).]
3)Requires that, in all cases in which a felony is charged, the
accused must be present at the arraignment, at the time of
plea, and at other hearings, as specified. The accused shall
be personally present at all other proceedings unless he or
she shall, with leave of court, execute in open court a
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written waiver of his or her right to be personally present,
as specified. If the accused agrees, the initial court
appearance, arraignment, and plea may be by two-way electronic
audio-video communication, as specified. [Penal Code Section
977(b)(1) and 977(c).]
4)Allows that in any case in which the defendant is charged with
a misdemeanor or a felony and currently incarcerated in the
state prison, the Department of Corrections may arrange
without the defendant's consent for all court appearances in
superior court, except for the preliminary hearing, trial,
judgment and sentencing, and motions to suppress, to be
conducted by two-way electronic audio-video communication
between the defendant and the courtroom in lieu of the
physical presence of the defendant in the courtroom, as
specified. [Penal Code Section 977.2.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California is a
technology leader and innovator. I have introduced this bill
because we must capitalize on the advancements that the Golden
State has been party to so that we can improve public safety,
reduce backlogs in the court system, and save both time and
money in the process."
2)Potential Logistical Issues : This bill allows an in-custody,
criminal defendant's first court appearance to be conducted
via audio-video transmission between the courtroom and the
jail where the inmate is housed. In many jurisdictions, a
first appearance includes entry of a plea, appointment of
counsel if the defendant establishes that he or she is
indigent, and a bail hearing. In most cases, public defenders
and private-appointed counsel represent numerous defendants on
a single arraignment calendar. Some defendants are in
custody; some defendants may be out of custody. Under this
bill, the attorney faced with that situation would be required
to be present in the courtroom with the out-of-custody client.
The attorney would nevertheless need to conduct an initial
interview with his or her several in-custody clients to obtain
information critical to appointment of counsel issues and
setting of bail. These are very personal matters involving
whether the client is working, what salary the client earns,
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whether he or she owns a home, what family members of the
client live in the area, etc. Because the client has, in most
cases, never met the attorney before, a vital component of the
attorney's job is to establish a sense of trust and rapport
with the new client when asking these sensitive questions.
Requiring these interviews to be conducted by telephone, as
this bill appears to require in these situations, could
impinge on the defendant's Sixth Amendment right to effective
assistance of counsel.
3)Prior Legislation : AB 99 (Cox), Chapter 293, Statutes of
2003, in cases where the defendant is charged with a
misdemeanor or a felony and is currently incarcerated in the
state prison, authorizes all court appearances, except for
preliminary hearings, trials and certain other matters, to be
conducted by two-way, electronic audio-video communication
between the defendant and the courtroom in lieu of the
physical presence of the defendant in the courtroom.
SB 1126 (Costa), Chapter 888, Statutes of 1999, in cases where
the defendant is charged with a misdemeanor or a felony and is
currently incarcerated in the state prison, authorizes the
initial court appearance and arraignment of a defendant in
municipal or superior court to be conducted by two-way,
electronic audio-video communication between the defendant and
the courtroom in lieu of the physical presence of the
defendant in the courtroom.
AB 167 (Bordonaro), Chapter 131, Statutes of 1995, created
three-year pilot program allowing audio-video arraignments of
in custody defendants in Santa Barbara County.
REGISTERED SUPPORT/OPPOSITION :
Support
California District Attorneys Association
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Steven Meinrath / PUB. S. / (916)
AB 100
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