BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1300 (Alquist) 0
As Amended April 12, 2012
Hearing date: April 24, 2012
Penal Code
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INTERROGATION:
ELECTRONIC COMMUNICATIONS
HISTORY
Source: California Public Defenders Association
American Civil Liberties Union
Prior Legislation: SB 1590 (Alquist) - 2008 held Senate
Appropriations
SB 511 (Alquist) - 2007 Vetoed
SB 171 (Alquist) - 2006 Vetoed
AB 161 (Dymally) - As introduced 2003
Support: American Civil Liberties Union
Opposition:None known
KEY ISSUES
SHOULD THE LAW REQUIRE CUSTODIAL INTERROGATIONS OF PERSONS
SUSPECTED OF SERIOUS OR VIOLENT FELONIES TO BE ELECTRONICALLY
RECORDED?
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SHOULD THE LAW PROVIDE FOR EXECEPTIONS TO THE ELECTRONICALLY
RECORDED INTERROGATION
RULE?
(CONTINUED)
SHOULD THE LAW PROVIDE FOR REMEDIES WHEN AN INTERROGATION IS NOT
RECORDED?
SHOULD THE LAW REQUIRE MONITORING BY THE JUDICIAL COUNCIL AND THE
DEPARTMENT OF JUSTICE OF ELECTRONIC RECORDING OF THE INTERROGATIONS?
PURPOSE
The purpose of this bill is to require electronic recording of
custodial interrogations of people suspected of serious or
violent felonies and to set forth exceptions and remedies to
that requirement.
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?."
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 information.
Existing law 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.
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(Penal Code � 13510)
Existing law 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)
Existing law requires the establishment of a protocol for the
examination and treatment of victims of sexual assault and
attempted sexual assault. (Penal Code � 13823.5)
Existing law provides that notwithstanding provisions
prohibiting eavesdropping, any district attorney, or any
assistant, deputy or investigator of the Attorney General or any
district attorney any officer of the California Highway Patrol,
any chief of police or city and county, any sheriff,
undersheriff or deputy sheriff regularly employed and paid in
that capacity by a county, police officer of the County of Los
Angeles, or any person acting pursuant to the direction of one
of these law enforcement officers acting within the scope of his
or her authority, from overhearing or recording any
communication that they could lawfully overhear or record prior
to the implementation of the wiretap laws ? (Penal Code � 633)
This bill provides that any custodial interrogation of any
person, regardless of whether that person is an adult or minor,
who is suspected of committing a serious or violent felony
offense shall be electronically recorded in its entirety.
This bill provides that a statement that is electronically
recorded as required pursuant to this section creates a
rebuttable presumption that the electronically recorded
statement was, in fact, given and was accurately recorded by the
prosecution's witnesses, provided that the electronic recording
was made of the custodial interrogation in its entirety and the
statement is otherwise admissible.
This bill provides that he requirement for electronic recording
shall not apply under the following circumstances:
Electronic recording is not feasible because of exigent
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circumstances. The exigent circumstances shall be recorded
in the police report.
The person to be interrogated states that he or she will
speak to the law enforcement officer or officers only if
the interrogation is not electronically recorded. If
feasible, that statement shall be electronically recorded.
This requirement also does not apply if the person being
interrogated indicates during the interrogation that he or
she will not participate in further interrogation unless
electronic recording ceases.
The custodial interrogation took place in another
jurisdiction and was conducted by the officers of that
jurisdiction in compliance with the law of that
jurisdiction, unless the interrogation was conducted with
intent to avoid this requirement.
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 series of violent felony offense for which
recording is required. If during the course of the
custodial interrogation the individual reveals facts that
give the officer reason to believe that as serious or
violent felony has been committed, the rest of the
interrogation shall be electronically recorded as required.
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. And explanation of the circumstances shall be
recorded in the police report.
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.
The questions put to a person by law enforcement
personnel and the person's responsive statements, were part
of a routine processing or booking of that person.
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Electronic recording is not required for spontaneous
statements made in response to questions asked during the
routine processing of the arrest of the person.
This bill 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.
This bill provides that that 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 if the court
finds that all of the following apply:
The statements are admissible under applicable rules of
evidence.
The prosecution has proven by clear and convincing
evidence that the statements were made voluntarily.
Law enforcement personnel made a contemporaneous audio
or audio and visual recording of the reason for not making
an electronic recording of the statements. This provision
does not apply if it was not feasible for law enforcement
personnel to make that recording.
The prosecution has proven by clear and convincing
evidence that one or more of the exceptions existed at the
time of the custodial interrogation.
This bill creates the following relief for failure to
electronically record a statement:
Failure to comply with any of the requirements shall be
considered by the court in adjudicating motions to suppress
a statement of a defendant made during or after a custodial
interrogation.
Failure to comply with any of the requirements of this
section shall be admissible in support of claims that a
defendant's statement was involuntary or is unreliable,
provided the evidence is otherwise admissible.
If the court admits into evidence a statement made
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during a 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.
This bill provides that the Judicial Council shall develop jury
instructions regarding the failure to electronically record that
are substantially similar to the one set forth in the bill.
This bill provides that the interrogating entity shall maintain
the original or an exact copy 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 as otherwise
provided by the Welfare and Institutions Code.
This bill provides that the interrogating entity may make one or
more true, accurate, and complete copies of the electronic
recording in a different format.
This bill provides that Judicial Council shall monitor
compliance with the electronic recording requirement.
This bill provides that Judicial Council shall develop forms to
survey interrogations and outcomes and to identify any patterns
of noncompliance with the requirements of this section.
This bill provides that the Judicial Council forms shall be
completed and submitted by the judge and prosecutor to the
Judicial Council for any of the following cases:
Cases in which recorded interrogations were introduced
as evidence in criminal proceedings.
Cases in which interrogations were not recorded by were
nonetheless introduced as evidence in a criminal
proceeding.
Cases in which interrogations were recorded and a plea
of guilty to a felony offense was entered and accepted by
the court.
Cases in which interrogations were not recorded and a
plea of guilty to a felony offense was entered and accepted
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by the court.
This bill provides that compliance with the electronic recording
requirement shall also be monitored by the Department of Justice
(DOJ).
This bill provides that the DOJ shall develop forms for purposes
of identifying any patterns of noncompliance and sets forth what
the forms shall include.
This bill provides that the DOJ forms shall be completed and
submitted to DOJ by the interrogating officer or officers in
each case of an unrecorded interrogation, regardless of whether
or not the electronic recording is admissible.
This bill provides that "custodial interrogation" means any
interrogation in a fixed place of detention involving a law
enforcement officer's questioning that is reasonably likely to
elicit incriminating responses and in which a reasonable person
in the subject's position would consider himself or herself to
be in custody, beginning when a person should be advised of his
or her constitutional rights, including the right to remain
silent, the right to have counsel present during any
interrogation, and the right to have counsel appointed if the
person is unable to afford counsel, and ending with the
questioning has completely finished.
This bill provides that "electronic recording" means an audio or
video recording that accurately records a custodial
interrogation.
This bill provides that "fixed place of detention" means a fixed
location under the control of a law enforcement agency where an
individual is held in detention in connection with any criminal
offense that has been, or may be, filled against that person.
The term includes a jail, police or sheriff's station, holding
cell, correction or detention facility, juvenile hall, or a
facility of the Division of Juvenile Facilities.
This bill provides that "law enforcement officer" means any
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person employed by a law enforcement agency whose duties include
enforcing criminal laws or investigating criminal activity or
any other person who is acting at the request of direction of
that person.
This bill provides that the provisions on electronic recording
of custodial interrogations also applies to a person who is or
may be adjudged a ward of the juvenile court on the grounds that
he or she has committed serious or violent felony offense.
This bill provides when the interrogation is of a juvenile, the
interrogating entity shall maintain an original or exact copy of
any electronic recording made of a custodial interrogation until
the person is no longer subject to the jurisdiction of the
juvenile court, unless the person is transferred to a court of
criminal jurisdiction.
This bill makes uncodified findings and declarations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
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ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
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inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
The second most frequent cause of wrongful conviction
is the extraction of false confessions during police
questioning of suspects. Of the 340 exonerations
identified by Professor Samuel Gross and his team from
the University of Michigan, 51 of those criminal
defendants confessed to crimes they had not committed.
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. In a separate study, professors Steve
Drizin and Richard A. Leo of the University of San
Francisco School of Law identified 125 cases which
occurred between 1972 and 2002 in which a false
confession was given to investigators. The research
suggests that false confessions are often extracted
from the most vulnerable suspects. One-third of the
Drizin and Leo sample were juveniles, another 22% were
mentally disabled, and at least 10% were mentally ill.
But even fully competent and rational persons may be
victimized by coercive interrogation techniques.
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Eight of those cases happened in California. Although
none of the California charges resulted in conviction,
the pendency of the charges based upon false
confessions imposed tremendous burdens on the accused
and their families, as well as the victims and their
families. Those accused who submit false confessions
are often in custody for months prior to being released
and families of the victims are under the mistaken
assumption that the perpetrator has been caught, only
to suffer double trauma when they found out later that
a false confession was extracted.
This bill will require the creation of an electronic
record of custodial interrogations in order to
eliminate disputes in court as to what actually
occurred during the interrogation, thereby improving
prosecution of the guilty while affording protection to
the innocent. In addition to preventing wrongful
convictions, this bill will benefit the police
departments that use it for a number of reasons.
First, recording creates an objective, comprehensive
record of interrogation. Second, recording 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,
recording provides the police protection against false
claims of police misconduct. Finally, taping provides
detectives, police managers, prosecutors, defense
attorneys, and judges the ability to more easily detect
false confessions and more easily prevent their
admission into evidence.
Because of these benefits to law enforcement, more than
500 police departments throughout the country require
the recording of interrogation. That number is growing
by the day. Thomas Sullivan, a former US Attorney and
co-chair of the Illinois Commission on Capital
Punishment, has documented the police experience with
recording custodial interrogations. A substantial
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number of departments in California already report they
currently record a majority of custodial
interrogations, including County Sheriffs of Alameda,
Butte, Contra Costa, El Dorado, Orange, Placer,
Sacramento, San Bernardino, San Joaquin, Santa Clara
(including all police agencies operating in Santa Clara
county), Ventura, and Yolo Counties. In addition, the
municipal departments for Sacramento, San Diego, San
Francisco, and San Jose require recording. Experienced
detectives from these departments report great
satisfaction with the results of recorded
interrogations, including but not limited to higher
conviction rates, less time litigating unwarranted
suppression motions, and fewer claims of police
misconduct.
Finally, the cost of recording custodial interrogation
must be measured against the cost of false confessions,
which takes a devastating human toll upon those who are
wrongfully charged, their families, the victims of
crime and their families. Closing a case with the
conviction of the wrong person based upon a false
confession leaves the real perpetrator at large to
victimize others. In addition, the costs of litigating
claims of police misconduct that might have been
deterred by taping are enormous. The case of Chris
Ochoa and his co-defendant was recently settled in
Austin, Texas. They received a $16 million judgment
for violations of civil rights due to prolonged
interrogation and false confession. The savings in
avoiding false claims of police misconduct should more
than pay the costs of implementation of a mandate that
all custodial interrogation in serious criminal cases
be electronically recorded.
2. Custodial Interrogations
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
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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:
Interrogation 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 process.<1>
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
investigations."<2>
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:
---------------------------
<1> Recommendation 4, Report of the Illinois Governor's
commission on Capital Punishment (April 2002).
<2> Sullivan, Thomas P.; "Police Experiences with Recording
Custodial Interrogations" A special report by: North western
University School of Law Center on Wrongful Convictions, Summer
2004, p. 2.
(www.law.northwestern.edu/wrongfulconvictions/caused/custodialint
errogations.htm)
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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
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 www.ccfaj.org)
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)
3. Electronic Recording of Interrogations
There are a number of jurisdictions in California that
voluntarily, at least some of the time, electronically record
interrogations. This bill would provide that a custodial
interrogation of any person suspected of committing a serious or
violent offense shall be electronically recorded in its
entirety. The bill sets forth the exceptions to the general rule
and the remedies if the rule is not followed.
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a. Rebuttable Presumption
This bill provides that a statement electronically recorded
pursuant to this section creates a rebuttable presumption
that the electronically recorded statement was, in fact, given
and was accurately recorded by the prosecution's witnesses,
provided that the electronic recording was made of the
custodial interrogation in its entirety and the statement is
otherwise admissible. The recording requirement applies in
both adult and juvenile court.
b. Exceptions
This bill creates a number of exceptions to the requirement
that the interrogation be recorded.
If it is not feasible because of exigent
circumstances.
The person will only speak if it is not recorded.
The interrogation took place in another jurisdiction
and followed that jurisdiction's rules.
The interrogation took place when the facts would
not lead the officer to believe that the person could be
guilty of a serious or violent felony.
The officer has reason to believe the electronic
recording would disclose the identity of a confidential
informant or jeopardize the safety of an officer or
another individual.
The device malfunctioned.
When an exception is used the prosecutor must show by clear
and convincing evidence that the exception applies.
a. Admissibility of Statements
This bill provides that the presumption of inadmissibility
of statements may be overcome and a person's statement that
was not electronically recorded may be admitted into
evidence in a criminal proceeding if the court finds all of
the following apply:
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The statements are admissible under applicable
rules of evidence.
The prosecution has proven by clear and
convincing evidence that the statements were made
voluntarily.
Law enforcement personnel made contemporaneous
audio or visual recording of the reason for not making
an electronic recording of the statement, unless the
reason was that it was not feasible.
The prosecution has proven by clear and
convincing evidence that one or more of the
circumstances existed at the time of the custodial
interrogation.
a. Remedies
If a statement is not recorded, and a court does not find that
one of the exceptions apply then the following remedies shall
be granted:
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It shall be considered by the court in adjudicating
motions to suppress a statement of a defendant made
during or after a custodial interrogation.
The failure to comply shall be admissible in support
of claims that a defendant's statement was involuntary or
is unreliable, provided the evidence is otherwise
admissible.
If the court admits an unrecorded statement then the
court, upon the request of the defendant, give the jury a
cautionary jury instruction.
a. Jury Instruction
This bill provides that Judicial Council shall develop jury
instructions for the court to give when a statement is
admitted that was not electronically recorded in accordance
with this bill. The bill outlines a sample jury instruction
and says the one created by Judicial Council shall be
substantially similar to the one in the bill.
b. Maintaining the Recording
The original or exact copy of an electronic recording shall be
kept until a conviction for any offense relating to the
interrogation is final and all direct and habeas appeals are
exhausted or the prosecution for that offense is barred by
law. In juvenile proceedings they shall be kept until the
person is no longer the subject of juvenile court.
c. Monitoring Compliance
Under this bill both the Judicial Council and the Department
of Justice (DOJ) are required to monitor compliance with the
electronic recordings set up by the bill. Judicial Council
will be creating forms to be filled out by the judge and
prosecutor with information regarding cases that either
electronically recorded statements were admitted or statements
that should have been electronically recorded but weren't were
admitted.
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The DOJ will create forms that are to be filled out by the
interrogating officer and will determine whether recordings
were made and if not what the primary reason for not recording
was.
It is not clear how the monitoring by either Judicial Council
or DOJ would work. The Judicial Council generally would not
be overseeing what a prosecutor does or does not do and this
could be violation of separation of powers. Would having
every interrogator for any suspected serious or violent felony
fill out an additional form to send to DOJ be productive? Is
this oversight necessary? Isn't the oversight by the courts
in admitting or not admitting evidence at trial and any
appeals that come from those decisions sufficient oversight?
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