New California Criminal Laws: Part Deux

Here are three more new laws for this week.

The public has greater access to police personnel files. This is Senate Bill 1421. It declares that the public has an important interest in law-enforcement transparency because it is essential to having a just and democratic society. It then amends the Penal Code to confer more access to police and prison personnel records. Generally, these records are confidential and hard to come by in litigation or through public-records requests. The new law says they’re no longer confidential if they relate to one of three things: (1) your firing your gun at someone or using force that resulted in death or great bodily injury; (2) a sustained finding that you sexually assaulted someone; or (3) a sustained finding that you were dishonest in a criminal case or in the investigation of another cop. A sustained finding is a final decision by the relevant authority after an investigation and opportunity to appeal. If any of those applies then the public has a right to know, and it may obtain the records on request. But there are a number of exceptions, grounds for redaction, and grounds for delay.

The public has greater access to video or audio from police shootings or deadly use of force. This is Assembly Bill 748. It amends the Government Code to require the release of video or audio from police shootings or any use of force that results in death or great bodily injury. There are two exceptions. First, an agency may withhold a recording for as long as it would substantially interfere with an active investigation. Second, an agency may withhold a recording if it would violate someone’s reasonable privacy rights in a way that outweighs the public’s interest in disclosure and that can’t be redacted. This law goes into effect on July 1, 2019.

The public can expect more reliable eyewitness identifications. This is Senate Bill 923. It amends the Penal Code to require all police and prosecutors to adopt basic rules for photo line-ups and live (in-person) line-ups with eyewitnesses. It’s a problem because bad identifications are a leading cause of wrongful convictions. This law will go into effect on January 1, 2020 to give people time to draft their rules. The rules must include the following (among others) at a minimum:

• Ask the witness for a description of the person beforehand, as close in time to the event as possible.
• Make sure the cop who does the line-up doesn’t know who the suspect is or, if he does know, where the suspect is positioned in the line-up.
• Tell the witness beforehand that the person may or may not be there, and he shouldn’t feel compelled or obligated to make an identification.
• Say nothing that could influence his decision.
• If the witness makes an identification, ask for his confidence level and record, verbatim, what he says.