BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair S
2005-2006 Regular Session B
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SB 1668 (Bowen) 8
As Introduced February 24, 2006
Hearing date: April 4, 2006
Penal Code
SM:br
CHILD DEATH REVIEW TEAMS
HISTORY
Source: Author
Prior Legislation: AB 1241 (Pacheco) - Ch. 916, 21, Stats.
2001
AB 102 (Pacheco) - Ch. 133 10, Stats. 2001
SB 1313 (Kuehl) - Ch. 842 11, Stats. 2004
Support: California District Attorneys Association; California
Attorney General; California State Association of
Counties (CSAC); California State Sheriffs'
Association; California State Coroners' Association;
Child Abuse Prevention Council of Sacramento;
Children's Specialists Medical Group of Sacramento;
Prevent Child Abuse California; Community School
Solutions of California; The Child Abuse Prevention
Center, Tuolumne County Superintendent of Schools;
Youth Development Zone; an individual
Opposition:California Newspaper Publishers Association
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KEY ISSUE
SHOULD EVIDENCE PRESENTED TO CHILD DEATH REVIEW TEAMS BE DEEMED
CONFIDENTIAL AND NOT SUBJECT TO DISCLOSURE OR DISCOVERABLE BY A
THIRD PARTY?
PURPOSE
The purpose of this bill is to encourage parties with relevant
information to present that information to child death review
teams by providing that all information presented to the team
will be deemed confidential and not subject to disclosure or
discovery.
Existing law establishes Child Death Review Teams (Penal Code
11174.32) and Domestic Violence Death Review Teams (Penal Code
11163.3) and Elder Death Review Teams. (Penal Code
11174.5.)
Existing law states that interagency child death teams have
been used successfully to ensure that incidents of child abuse
or neglect are recognized and other siblings and nonoffending
family members receive the appropriate services in cases where
a child has expired. (Penal Code 11174.32(a).)
Existing law regarding Child Death Review Teams states that
each county may establish an interagency child death team to
assist local agencies in identifying and reviewing
suspicious child deaths and facilitating communication among
persons who perform autopsies and the various persons and
agencies involved in child abuse or neglect cases. (Penal
Code 11174.32(a).)
Existing law states that each county may develop a protocol that
may be used as a guideline by persons performing autopsies on
children to assist coroners and other persons who perform
autopsies in the identification of child abuse or neglect, in the
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determination of whether child abuse or neglect contributed to
death or whether child abuse or neglect had occurred prior to but
was not the actual cause of death, and in the proper written
reporting procedures for child abuse or neglect, including the
designation of the cause and mode of death. (Penal Code
11174.32(b).)
Existing law states that in developing an interagency child
death team and an autopsy protocol, each county, working in
consultation with local members of the California State
Coroner's Association and county child abuse prevention
coordinating councils, may solicit suggestions and final
comments from persons, including, but not limited to, the
following:
(1) Experts in the field of forensic pathology.
(2) Pediatricians with expertise in child abuse.
(3) Coroners and medical examiners.
(4) Criminologists.
(5) District attorneys.
(6) Child protective services staff.
(7) Law enforcement personnel.
(8) Representatives of local agencies which are involved
with child abuse or neglect reporting.
(9) County health department staff who deals with children's
health issues.
(10) Local professional associations of persons
described in paragraphs (1) to (9), inclusive.
(Penal Code 11174.32(c).)
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This bill amends Penal Code 11174.32 to add the following
language: "An oral or written communication or a document
shared within or produced by a child death review team related
to a child death review is confidential and not subject to
disclosure or discoverable by a third party. An oral or written
communication or a document provided by a third party to a child
death review team, or between a third party and a child death
review team, is confidential and not subject to disclosure or
discoverable by a third party. Notwithstanding the foregoing,
recommendations of a child death review team upon the completion
of a review may be disclosed at the discretion of a majority of
the members of the child death review team."
COMMENTS
1. Need for This Bill
According to the author:
California law lets counties establish interagency
death review teams to help local agencies identify
and review suspicious deaths, and facilitate
communication among people with expertise in the
related field. Currently, there are three Review
Teams (RTs) in statute: Elder Death Review Teams
(EDRTs), Domestic Violence Death Review Teams
(DVDRTs) and Child Death Review Teams (CDRTs).
Penal Code 11163.3 (DVDRT) and Penal Code 11174.7
(EDRT) both include provisions concerning the
confidentiality of communications shared within or
produced by a RT. Basically, any information -
either oral or written - is confidential to the
RT. The RT may disclose the information after the
completion of the review, at the discretion of a
majority of the RT.
The confidentiality provisions provided for EDRTs
and DVDRTs are NOT currently included for county
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CDRTs. Without it, people such as county
coroners, law enforcement and even health
professionals are reluctant to attend and speak
openly for fear the information may become public
and be traced back to them. As a result, a
program designed to encourage free-flowing, open
and honest dialogue has unfortunately eroded into
the CDRT having to strong-arm (even subpoena)
individuals to participate.
This bill adds confidentiality provisions to the
Penal Code so CDRTs can more effectively carry out
their mission as envisioned. The primary reason
it's not already in code is simply because CDRTs
were created prior to either of the other two RTs
and nobody thought of it. EDRTs and DVDRTs were
established based on what was or wasn't working
with CDRTs and confidentiality of information was
an important component. Without confidentiality
of information it becomes extremely difficult for
any RT to get any meaningful work done since many
of the key players are very hesitant to
participate.
The bill mirrors existing language for EDRTs and
DVDRTs and provides much needed conformity between
the RTs.
2. Constitutional Limitations of Confidentiality Provisions
In the landmark case of Brady v. Maryland, the U.S. Supreme
Court held that, where a criminal defendant makes a discovery
request for all exculpatory evidence known to the prosecution,
the suppression by the prosecution of evidence favorable to an
accused violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution. (Brady v. Maryland, 373 U.S.
83, 87 (1963).) The U.S. Supreme Court has also found that the
Brady duty of turning over exculpatory evidence includes not
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only the prosecutor, but the investigating officers as well.
(Kyles v. Whitley, 514 U.S. 419, 438 (1995).) "[P]olice who
deliberately withhold exculpatory evidence, and thus prevent the
prosecutors from complying with the obligations articulated in
Brady, violate the due process clause." Newsome v. McCabe, 260
F.3d 824, 824 (7th Cir. 2001). Additionally, when an
investigator withholds exculpatory information and the defendant
is then convicted, the investigator could be exposed to civil
liability for violating the defendant's federally protected due
process rights. "The lower federal courts are in agreement that
where the suppression of exculpatory evidence by police officers
results in a conviction and a period of incarceration a
defendant may have a cause of action under [42 U.S.C. ] 1983"
(prohibiting federal civil rights violations under color of
authority). (Avery, Paying for Silence: The Liability of Police
Officer's Under Section 1983 for Suppressing Exculpatory
Evidence, 13 Temple Political & Civil Rights Law Review 1, 2
(2003).)
A state statute cannot abrogate a duty that is imposed on
prosecutors and investigators by the United States Constitution.
By stating that information provided to child death review
teams, "is confidential and not subject to disclosure or
discoverable by a third party," this bill could create some
confusion about the continued existence of the duty. The
consequences of this confusion could be that members of death
review teams would feel constrained to not disclose exculpatory
evidence that comes to their attention to a defendant that they
might otherwise feel compelled to disclose. This could not only
result in the wrongful conviction of an innocent person but
could also, as noted above, result in the members of the death
review team being found civilly liable for violating the
defendant's constitutional right to due process of law.
3. Lack of Clarifying Language in Similar Statutes
Similar statutes as that which created CDRTs have been enacted
to create Domestic Violence Death Review Teams (Penal Code
11163.3) and Elder Death Review Teams. (Penal Code
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11174.5). These statutes contain the same language regarding
confidentiality as this bill proposes to add to the statute
creating CDRTs. The same confusion could arise in the conduct
of the other death review teams regarding the fact that these
statutes, notwithstanding their language, are limited in their
scope by well-established and superseding federal
constitutional due process requirements. Those statutes are
not the subject of this bill. Amending this bill with
language clarifying the fact that this statute does not
abrogate the duties recognized in Brady may not relieve the
confusion that could arise over this issue in the work of the
domestic violence and elder abuse death review teams but it
will, at least, not give rise to additional confusion,
potential civil rights violations and consequent liability in
connection with the important work of CDRTs.
SHOULD THE BILL BE AMENDED TO STATE THAT ITS PROVISIONS DO NOT
ABROGATE THE DUTY, AS RECOGNIZED BY THE UNITED STATES SUPREME
COURT, OF ANY INVESTIGATOR TO DISCLOSE EXCULPATORY EVIDENCE TO A
DEFENDANT CHARGED IN A CRIMINAL CASE?
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4. Related Bill and the Effect of This Bill on Federal CAPTA
Funding
In December 2005, the U.S. Department of Health and Human
Services (HHS) informed the California Department of Social
Services (DSS) that California was out of compliance with the
federal Child Abuse Prevention and Treatment Act (CAPTA), which
requires the state to have "provisions which allow for public
disclosure of the findings or information about the case of
child abuse or neglect which has resulted in a child fatality or
near fatality." As a result, California was put on notice that
it stood to lose its CAPTA Basic State Grant for fiscal year
2006, estimated at $3,174,227. (Letter dated December 13, 2005,
from Sharon Fujii, Regional Administrator, Department of Health
and Human Services to Mary L. Ault, Deputy Director, Children
and Family Services Division, California Department of Social
Services.)
DSS reviewed California's compliance and presented HHS with a
proposal to remedy the situation without the need for any
legislation to address the issue. In essence, DSS concluded
that the federal requirements for the release of information
concerning specific cases of infant death or near death could be
satisfied by instructing county officials by way of an "all
county letter" of their duty to disclose specified information.
(Letter dated January 31, 2006, from Mary L. Ault, Deputy
Director, Children and Family Services Division, California
Department of Social Services to Sharon Fujii, Regional
Administrator, Department of Health and Human Services.)
However, in her January 31 letter to HHS, after referencing
California's constitutional right to privacy, Deputy Director
Mary Ault of DSS summed up the issue: "A careful balance will
need to be struck between the individual's right to privacy and
the public's right to know." (Ibid.) In February 2006, HHS
agreed to release the FY 2006 CAPTA funds to California on a
quarterly basis, pending final approval of the "corrective
action plan" proposed by DSS. (Letter dated February 7, 2006,
from Sharon Fujii, Regional Administrator, Department of Health
and Human Services to Mary L. Ault, Deputy Director, Children
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and Family Services Division, California Department of Social
Services.)
AB 2938 (Sharon Runner), currently pending in the Assembly, yet
to be referred to Committee, addresses the issue by amending
existing codes to mandate the release of specified information
related to child deaths and near-deaths.
Because SB 1668 proposes to restrict public disclosure of
information related to child deaths, the very subject of the
"careful balance" that DSS is attempting to strike with HSS, it
is not at all clear what effect this bill would have on
California's attempts to establish compliance with federal CAPTA
requirements.
5. Opposition to the Bill
The California Newspaper Publishers Association states:
CNPA is concerned that the prohibition of
"communications or documents provided by a third
party to a child death review team, or between a
third party and a child death review team" will be
interpreted by a participating agency to deny
access to documents, that it would otherwise be
required to disclose, simply because it shared
them with the Child Death Review Team. Moreover,
CNPA believes that Californians are ill served by
a policy that leaves to the discretion of a
majority of the members of a government agency
whether its information should be publicly
disclosed. If history is any measure, it is our
experience that many government agencies are
loathe to exercise such discretion.
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