BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
SB 1300 (Alquist) - Interrogation: electronic recordation.
Amended: April 12, 2012 Policy Vote: Public Safety 6-1
Urgency: No Mandate: Yes
Hearing Date: May 24, 2012 Consultant: Jolie Onodera
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: SB 1300 would require the electronic recordation
of custodial interrogations of individuals suspected of serious
or violent felonies and set forth exceptions and remedies to
that requirement. This bill would require compliance with the
electronic recording requirement to be monitored by the Judicial
Council and the Department of Justice (DOJ), as specified.
Fiscal Impact:
Potentially significant reimbursable state-mandated
local law enforcement start-up costs (General Fund) for
equipment, storage, and personnel.
Potential annual ongoing reimbursable state-mandated
local law enforcement costs (General Fund) for increased
workload associated with interrogation recordation and
equipment maintenance/upgrades.
Potential one-time significant costs (General Fund) for
the CDCR to purchase audio recording equipment. Annual
ongoing training and workload costs for recordation.
Potential one-time significant costs (Motor Vehicle
Account) to the California Highway Patrol for recording
equipment. Ongoing training and workload costs for
recordation.
Unknown, potential future trial court cost savings
(General Fund) to the extent mandated electronic
interrogation recording results in fewer false confessions,
expedited trials, and avoided litigation involving
interrogation issues.
Background: In its July 2006 report entitled "Report and
Recommendations Regarding False Confessions," the California
Commission on the Fair Administration of Justice (CCFAJ) noted
that false confessions were identified as the second most
frequent cause of wrongful convictions in a national study
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previously reviewed by the CCFAJ. The CCFAJ report states:
"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.
The cost of recording custodial interrogations must be measured
against the cost of false confessions, which takes a devastating
human toll on those who are wrongfully charged, their families,
the victims of crime, and their families. Closing a case with
conviction of the wrong person based upon a false confession
also leaves the real perpetrator at large, to victimize others.
The cost of litigating claims of police misconduct that might
have been deterred by taping, and the savings in avoiding false
claims of police misconduct should, in the long run, more than
pay the costs of implementation of a mandate that all custodial
interrogation in serious criminal cases be electronically
recorded."
Proposed Law: This bill would require the custodial
interrogation of an individual, whether an adult or a minor, who
is suspected of a serious or violent felony to be electronically
recorded in its entirety. With regard to the scope of electronic
recording, the bill:
Provides that electronic recording shall not be required
under specified exceptions such as exigent circumstances,
potentially jeopardizing the identity of a confidential
informant, under the routine processing of and arrest, or
due to equipment malfunction, among others.
Provides that a person's statements that were not
electronically recorded may be admitted into evidence
subject to specific criteria.
Creates relief for failure to electronically record a
statement, as specified.
Provides that the Judicial Council shall develop jury
instructions regarding the failure to electronically record
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that are substantially similar to those specified in the
bill.
Requires the interrogating entity to maintain the
original or an exact copy of a recording until a conviction
for any offense is final and all appeals are exhausted or
the prosecution for that offense is barred by law. In the
case of a minor, the recording must be retained until the
minor is no longer under the jurisdiction of the juvenile
court, unless transferred to a court of criminal
jurisdiction.
Requires the Judicial Council to monitor compliance with
the electronic recording requirement, develop forms to
survey interrogations and outcomes and to identify any
patterns of noncompliance.
Requires judges and prosecutors to complete and submit
the interrogation forms in cases in which interrogations
were and were not recorded and introduced as evidence in
criminal proceedings, as well as cases in which
interrogations were and were not recorded and a plea of
guilty to a felony offense was entered and accepted by the
court.
Requires the DOJ to also monitor compliance with the
electronic recording requirement and develop forms for
identifying patterns of noncompliance.
Requires the interrogating officer to complete and
submit the DOJ form in each case of an unrecorded
interrogation, regardless of whether or not the electronic
recording is admissible.
Defines "electronic recording" as an audio or video
recording that accurately records a custodial
interrogation.
Makes numerous uncodified legislative findings and
declarations.
Related Legislation: SB 1590 (Alquist) 2008 would have required
the electronic recordation of any custodial interrogation of an
individual suspected of homicide or a violent felony. SB 1590
was held on this committee's Suspense File.
SB 511 (Alquist) 2007 would have required custodial
interrogations of violent felony suspects to be electronically
recorded. This bill was vetoed by the Governor with the
following message:
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I am returning Senate Bill 511 without my signature. While
reducing the number of false confessions is a laudable goal, I
cannot support a measure that would deny law enforcement the
flexibility necessary to interrogate suspects in homicide and
violent felony cases when the need to do so is not clear.
Police interrogations are dynamic processes that require
investigators to use acumen, skill and experience to determine
which methods of interrogation are best for the situation. This
bill would place unnecessary restrictions on police
investigators.
SB 171 (Alquist) 2006, another similar measure, was also vetoed
by the Governor.
Staff Comments: This bill would result in significant costs to
state agencies, including the CDCR, CHP, DOJ, as well as the
Judicial Council. Moreover, this bill creates a reimbursable
state-mandated local program on local law enforcement agencies
and district attorneys. Finally, this bill requires the Judicial
Council and the DOJ to monitor compliance with the requirements
established for electronic recordings, which will result in
potentially significant one-time and ongoing annual costs to
both agencies.
Local law enforcement agencies may currently record
interrogations electronically, however, by requiring this
activity for all cases as well as specifying records retention
will result in one-time costs for the purchase of equipment,
storage, staffing and possibly additional facilities space.
Ongoing state-reimbursable costs for personnel, training, and
equipment maintenance would also be incurred. This bill requires
interrogating officers to complete the newly developed DOJ form
for each case of an unrecorded interrogation, regardless of its
inadmissibility, which will result in additional ongoing
state-reimbursable costs for increased workload of an unknown,
but potentially significant amount. The exact magnitude of these
costs is unknown, but potentially in the millions of dollars
(General Fund) annually.
The Judicial Council would be required to monitor compliance of
the electronic recording of custodial interrogations by law
enforcement, as well as develop forms to survey interrogations
and outcomes and to identify any patterns of noncompliance.
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Although unclear how the oversight would be implemented, the
costs to the Judicial Council to establish and maintain such a
compliance and monitoring mechanism would likely be substantial.
The bill also requires judges and prosecutors to complete and
submit the forms developed by the Judicial Council in cases
involving the introduction of interrogations as evidence,
whether or not recorded, as well as in those cases in which a
guilty plea to a felony offense was entered and accepted by the
court regardless of whether interrogations were recorded. This
activity will result in costs for judges' and prosecutors' time
to complete/submit these forms. Requiring district attorneys to
complete and submit additional forms would result in annual
reimbursable state-mandated costs of an unknown but potentially
significant amount.
Author's amendments would limit the electronic recordation of
custodial interrogations to a person suspected of committing
homicide or a violent felony offense described in Penal Code
section 667.5, as well as delete the oversight requirements on
the Judicial Council and the DOJ.