BILL ANALYSIS �
SB 687
Page 1
SENATE THIRD READING
SB 687 (Leno)
As Introduced February 18, 2011
Majority vote
SENATE VOTE :23-15
PUBLIC SAFETY 5-2
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|Ayes:|Ammiano, Cedillo, Hill, | | |
| |Mitchell, Yamada | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Hagman | | |
| | | | |
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SUMMARY : Provides that a judge or jury may not enter a judgment of
conviction upon a defendant, find a special circumstance true, or
use a fact in aggravation based solely on the uncorroborated
testimony of an in-custody informant, as defined. Specifically,
this bill :
1)Defines an "in-custody informant" as a person, other than
codefendant, percipient witness, accomplice, or coconspirator,
whose testimony is based on statements allegedly made by the
defendant while both the defendant and the informant were held
within a city or county jail, state penal institution, or
correctional institution.
2)States that corroboration is not sufficient if it merely shows the
commission of the offense or the special circumstance or the
circumstance in aggravation.
3)States that corroboration shall not be provided by the testimony
of another in-custody informant unless the party calling the
in-custody informant as a witness establishes by a preponderance
of evidence that the in-custody informant has not communicated
with another in-custody informant on the subject of the testimony.
EXISTING LAW :
1)Provides that a conviction cannot be had upon the testimony of an
accomplice unless that testimony is corroborated by such other
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evidence which tends to connect the defendant with the commission
of the offense and that corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances
thereof.
2)Defines an "accomplice" as one who is liable to prosecution for
the identical offense charged against the defendant on trial in
the cause in which the testimony of the accomplice is given.
3)Defines an "in-custody informant" as a person, other than a
codefendant, percipient witness, accomplice, or coconspirator
whose testimony is based upon statements made by the defendant
while both the defendant and the informant are held within a
correctional institution.
4)States that in any criminal trial or proceeding in which an
in-custody informant testifies as a witness, upon the request of a
party, the court shall instruct the jury as follows: "The
testimony of an in-custody informant should be viewed with caution
and close scrutiny. In evaluating such testimony, you should
consider the extent to which it may have been influenced by the
receipt of, or expectation of, any benefits from the party calling
that witness. This does not mean that you may arbitrarily
disregard such testimony, but you should give it the weight to
which you find it to be entitled in the light of all the evidence
in the case."
5)States that when the prosecution calls an in-custody informant as
a witness in any criminal trial, contemporaneous with the calling
of that witness, the prosecution shall file with the court a
written statement setting out any and all consideration promised
to, or received by, the in-custody informant. The statement filed
with the court shall not expand or limit the defendant's right to
discover information that is otherwise provided by law. The
statement shall be provided to the defendant or the defendant's
attorney prior to trial and the information contained in the
statement shall be subject to rules of evidence.
6)States that for purposes of Penal Code Section 1127a(c)
"consideration" is defined as any plea bargain, bail
consideration, reduction or modification of sentence, or any other
leniency, benefit, immunity, financial assistance, reward, or
amelioration of current or future conditions of incarceration in
return for, or in connection with, the informant's testimony in
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the criminal proceeding in which the prosecutor intends to call
him or her as a witness.
7)States that no law enforcement or correctional official shall
give, offer, or promise to give any monetary payment in excess of
$50 in return for an in-custody informant's testimony in any
criminal proceeding. This does not include payments incidental to
the informant's testimony such as expenses incurred for witness or
immediate family relocation, lodging, housing, meals, phone calls,
travel, or witness fees authorized by law.
8)Provides that the prosecution shall make a good faith attempt to
notify any victim of a crime which was committed by, or is alleged
to have been committed by, an in-custody informant within a
reasonable time before the in-custody informant is called to
testify. The notice shall include information concerning the
prosecution's intention to offer the in-custody informant a
modification or reduction in sentence or dismissal of the case or
early parole in exchange for the in-custody informant's testimony
in another case. The notification or attempt to notify the victim
shall be made prior to the commencement of the trial in which the
in-custody informant is to testify where the intention to call him
or her is known at that time, but in no case shall the notice be
made later than the time the in-custody informant is called to the
stand.
FISCAL EFFECT : Unknown. This bill is keyed "nonfiscal" by the
Legislative Counsel.
COMMENTS : According to the author, "SB 687 is based on a simple
premise that proper safeguards on in-custody informant testimony
will help prevent future injustice. The truth is, wrongful
convictions can and do happen in California. According to research,
California has sent more innocent people to prison for longer terms
than any other state. No fewer than 150 and as many as 1,500 people
are now in prison for life for crimes they did not commit.
"In 2006, the Legislature established the California Commission on
the Fair Administration of Justice (Commission) to examine
miscarriages of justice such as wrongful convictions and make
recommendations on safeguards to ensure accuracy and fairness within
the criminal justice system.
"In crafting the recommendations, the Commission heard public
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testimony and took special note of the findings of the Los Angeles
County Grand Jury report on Jail Informants.
(http://www.ccfaj.org/documents/reports/jailhouse/expert/1989-1990
%20LA%20County%20Grand%20Jury%20Report.pdf.) The comprehensive
grand jury investigation arose out of a scandal involving Leslie
Vernon White, a Los Angeles jail inmate who made national news after
detailing methods for fabricating testimony to gain lenience. The
report is considered to be the most thorough review of the use of
informants as witnesses to date. The LA County District Attorney's
office then responded to the abuses revealed in the report by
adopting policy guidelines to strictly control the use of jailhouse
informants as witnesses.
"The LA District Attorney's policy now requires "strong
corroborative evidence," consisting of more than the fact that the
informant appears to know details of the crime thought to be known
only to law enforcement. A deputy wishing to use a jailhouse
informant as a prosecution witness must obtain the prior approval of
a Jailhouse Informant Committee headed by the Chief Assistant
District Attorney. Further, the office maintains a Central Index of
jailhouse informants who have offered to be, or who have been used
as witnesses. All of the records of jailhouse informants are
preserved, including notes, memoranda, computer printouts, records
of promises made, payments made, or rewards given, as well as
records of the last known location of the informant and records
relating to cell assignments.
"According to a 2005 study by the Center for Wrongful Convictions at
Northwestern School of Law, testimony from snitches and other
informants is the leading cause of wrongful convictions in death
penalty cases in the United States. Other research suggests that
20% of all wrongful convictions in California are the result of
perjured informant statements at trial. It's not surprising then
that the Commission focused on the use of informant as witnesses and
attempted to ascertain to what degree the best practices exemplified
by the LA District Attorney in the wake of the grand jury report
were being implemented by other District Attorneys throughout the
state. The Commission survey found that the policy guidelines
varied significantly from one jurisdiction to another. The
Commission was also informed by Professor Ellen Yaroshefsky of the
Benjamin N. Cardozo School of Law that 17 states currently require
the corroboration of in-custody informants.
"Given that California law did not directly require corroboration
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for in-custody informant testimony and jurisdictional policies were
inconsistent, by a unanimous, bipartisan vote, the Commission
recommended a statutory change that would prohibit a judge or jury
from convicting a defendant, finding a special circumstance to be
true, or using a fact in aggravation based solely on the
uncorroborated testimony of an in-custody informant. This
recommendation, now in the form of SB 687, will increase the
integrity of the criminal justice system and improve the quality of
evidence presented at criminal trials. The measure recognizes that
"jailhouse" informants are some of the most unreliable witnesses and
their testimony should be greeted with skepticism to ensure that no
person loses life or liberty based solely on the claims of this type
of witness."
Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0001272