Existing law defines an in-custody informant to mean 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. Existing law prohibits a law enforcement or correctional official from giving, offering, or promising to give any monetary payment in excess of $50 in return for an in-custody informants testimony in any criminal proceeding, as specified. Existing law requires the prosecution to file with the court a written statement prior to trial setting out any and all consideration, as defined, promised to, or received by, the in-custody informant when the prosecution calls an in-custody informant as a witness in any criminal trial.

This bill would revise the definition of an in-custody informant to refer to a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution. The bill would require the prosecutor, when the prosecution intends to call an in-custody informant as a witness in any criminal trial, use information or testimony from an in-custody informant in any criminal prosecution, to file with the court a written statement setting out the substance of all communications between the informant and any member of the prosecution, or a law enforcement or correctional agency, regarding the informants possible testimony or participation in information gathering, and setting out any and all consideration impliedly or expressly offered or promised to, or requested or received by, the in-custody informant. The bill would require the statement to contain specified information, including the informants complete criminal history, including pending criminal charges or investigations in which the informant is a suspect, and whether the informant is a substance abuser or has a history of substance abuse. suspect. The bill would authorize disclosure of the statement to the defense to be denied, restricted, or deferred upon a showing of good cause, as defined. The bill would also revise the definition of consideration for purposes of these provisions.

This bill would expand the scope of the prohibition against a law enforcement or correctional official giving, offering, or promising to give a monetary payment to make it applicable to a member of a prosecutorial entity, among other changes. The bill would also make the provision applicable to property and gifts, among other benefits, and would limit the combined value of those benefits to $100. The bill would also make technical changes.

Existing law defines an in-custody informant to mean 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. Existing law prohibits a law enforcement or correctional official from giving, offering, or promising to give any monetary payment in excess of $50 in return for an in-custody informants testimony in any criminal proceeding, as specified. Existing law requires the prosecution to file with the court a written statement prior to trial setting out any and all consideration, as defined, promised to, or received by, the in-custody informant when the prosecution calls an in-custody informant as a witness in any criminal trial.

This bill would revise the definition of an in-custody informant to refer to a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution. The bill would require the prosecutor, when the prosecution intends to call an in-custody informant as a witness in any criminal trial, to file with the court a written statement no less than 30 days prior to the preliminary hearing setting out the substance of all communications between the informant and any member of the prosecution, or a law enforcement or correctional agency, regarding the informants possible testimony or participation in information gathering, and setting out any and all consideration impliedly or expressly offered or promised to, or requested or received by, the in-custody informant. The bill would require the statement to contain specified information, including the informants complete criminal history, including pending criminal charges or investigations in which the informant is a suspect, and whether the informant is a substance abuser or has a history of substance abuse. The bill would also revise the definition of consideration for purposes of these provisions.

This bill would expand the scope of the prohibition against a law enforcement or correctional official giving, offering, or promising to give a monetary payment to make it applicable to a member of a prosecutorial entity, among other changes. The bill would also make the provision applicable to property and gifts, among other benefits, and would limit the combined value of those benefits to $100. The bill would also make technical changes.

Existing law defines an in-custody informant to mean 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. Existing law prohibits a law enforcement or correctional official from giving, offering, or promising to give any monetary payment in excess of $50 in return for an in-custody informants testimony in any criminal proceeding, as specified. Existing law requires the prosecution to file with the court a written statement prior to trial setting out any and all consideration, as defined, promised to, or received by, the in-custody informant when the prosecution calls an in-custody informant as a witness in any criminal trial.

This bill would revise the definition of an in-custody informant to refer to a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution. The bill would require the prosecutor, when the prosecution intends to call an in-custody informant as a witness in any criminal trial, to file with the court a written statement no less than 30 days prior to the preliminary hearing setting out the substance of all communications between the informant and any member of the prosecution, or a law enforcement or correctional agency, regarding the informants possible testimony or participation in information gathering, and setting out any and all consideration impliedly or expressly offered or promised to, or requested or received by, the in-custody informant. The bill would require the statement to contain specified information, including the informants complete criminal history, including pending criminal charges or investigations in which the informant is a suspect, and whether the informant is a substance abuser or has a history of substance abuse. The bill would also revise the definition of consideration for purposes of these provisions.

This bill would expand the scope of the prohibition against a law enforcement or correctional official giving, offering, or promising to give a monetary payment by limiting the monetary payment to make it applicable to a member of a prosecutorial entity, among other changes. The bill would also make the provision applicable to property and gifts, among other benefits, and would limit the combined value of those benefits to $100. The bill would also make technical changes.

Existing law defines an in-custody informant to mean 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. Existing law prohibits a law enforcement or correctional official from giving, offering, or promising to give any monetary payment in excess of $50 in return for an in-custody informants testimony in any criminal proceeding, as specified.

This bill would revise the prohibition against a law enforcement or correctional official giving, offering, or promising to give a monetary payment by limiting the monetary payment to $100. The bill would also make technical changes.

 THIRD READING  

Bill No: AB 359

Author:

Amended: 6/11/18 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/27/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

ASSEMBLY FLOOR: 59-12, 6/1/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill increases the amount of money that may be given to an in-custody informant and requires the prosecution to disclose additional information.

Senate Floor Amendments of 6/11/18 amend the bill to further clarify that it does not include a law enforcement officer or another person who engages a suspect in conversation at the specific direction of law enforcement in an attempt to gain information regarding criminal activity prior to the attachment of the suspect’s Sixth Amendment right to counsel and the conversation is audio or video recorded under circumstances known as “Perkins Operations;” and, clarify when the prosecution shall provide the defendant with the required statement regarding the use of an in-custody informant.

Senate Floor Amendments of 8/24/17 narrow the bill stating that it does not include a law enforcement officer or another person who engages a suspect in conversation at the specific direction of law enforcement in an attempt to gain information regarding criminal activity when the conversation is audio or video recorded under circumstances known as “Perkins Operations;” and, clarify when the prosecution shall provide the defendant with the required statement regarding the use of an in-custody informant.

ANALYSIS:

Existing law:

1. Provides that a jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant. (Penal Code §111.5)
2. 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.” (Penal Code § 1127a (a).)
   
3. Requires the court to provide a jury instruction, as specified, upon the request of a party, in any criminal trial or proceeding in which an in-custody informant testifies as a witness. (Penal Code § 1127a (b).)
   
4. Requires the prosecution, when calling an in-custody informant as a witness in a criminal trial, to file with the court a written statement setting out any and all consideration, as defined, promised to, or received by, the in-custody informant. (Penal Code § 1127a (c).)
   
5. Provides that a law enforcement or correctional official shall not give, offer, or promise to give any monetary payment in excess of fifty dollars in return for an in-custody informant’s testimony in a criminal proceeding. (Penal Code § 4001.1 (a).)
   

This bill:

1. Authorizes a member of the prosecution, law enforcement, or corrections to give, offer, or promise to give a monetary payment, property, gifts, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration with a combined value not to exceed $100 in return for or in connection with an in-custody informant’s cooperation in a criminal proceeding, as specified.
   
2. Provides that a prosecutor is not prohibited from giving or offering any plea bargain, bail consideration, reduction or modification of sentence, or immunity in consideration for cooperation and these types of consideration are not subject to the $100 limit, but must be documented.
   
3. Requires the prosecution, when intending to call an in-custody informant as a witness in a criminal trial, to file a statement with the court which includes specified information.
   
4. Requires the statement to be provided to the defendant or the defendant’s attorney no less than 30 days prior to the preliminary hearing.
   
5. Requires any member of the prosecution, law enforcement, or corrections who gives, expressly or impliedly offers or promises consideration to, or receives a request for consideration from, an in-custody informant to document the substance of all communications.
   
6. Provides that the documentation must be transmitted, as specified, to the district attorney and requires the district attorney to maintain a searchable electronic record of all documentation.
   
7. Defines an “in-custody informant” as “a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution.”
   
8. Defines “consideration” 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 participation in any information gathering activity, investigation or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.”

Background

1. Reliability of In-Custody Informants: Due to the nature of being incarcerated, in-custody informants are subject to pressures that may undermine the reliability of their testimony and the information that they provide. In-custody informants are motivated to leverage their information for consideration such as sentence reductions, financial assistance, and other benefits. These forms of consideration may incentivize informants to fabricate information or solicit information wrongfully, such as trading information between informants, pretending to be jailhouse lawyers for confessions, and even stealing legal documents from the cells of other inmates. (Rohrlich, Jailhouse Snitches: Trading Lies for Freedom (Apr. 16, 1989) L.A. Times <http://articles.latimes.com/1989-04-16/news/mn-2497_1_veteran-jailhouse-informants-jailhouse-snitches [as of March 15, 2017].)

Furthermore, there is a history of exploitation of in-custody informants by law enforcement, prosecution, and corrections officers. In-custody informants, once they are deemed cooperative, can become serial informants. While it is legal for law enforcement to use these informants, it is illegal for them to be deployed to coax incriminating statements from a defendant who's already been charged and has the constitutional right to an attorney and to remain silent. (Massiah v. U.S. (1964) 377 U.S. 201, 204; Pen. Code, § 4001.1, subd. (b).). A recent scandal in Orange County has demonstrated this exact type of abuse and exploitation. Several informants were allegedly moved in order to neighbor specific cells and wrongfully draw confessions from other inmates. In addition, the system in place lacked the transparency for defendants to know about these serial informants and how this information was gathered. This discovery has had severe consequences, causing demands for new trials, plea deals, and dropped charges. (Brown, Jailhouse Informant Scandal Rocking Criminal Justice System in Orange County (Oct. 22, 2011) ABC 7 <http://abc7.com/news/jailhouse-informant-scandal-rocking-oc-criminal-justice-system/1046811/ [as of March 15, 2017].)

This bill addresses these issues by creating a system that tracks the use of in-custody informants so that defendants may better address the reliability of the evidence used against them. Under current law “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant” in determining the admissibility of evidence. (Illinois v. Gates (1983) 462 US 213, 241-242.) Judges must currently evaluate the use of in-custody informant testimony and information by asking:

1. whether the police informant’s statement is factual rather than conclusory;
2. whether it rests on personal knowledge (Alexander v. Superior Court (1973) 9C3d 387, 391-392; People v. Murphy (1974) 42 CA3d 81, 87);
3. whether the police informant is credible; or
4. whether the informant is reliable (People v. Johnson (1990) 220 CA3d 742, 749.)
   
5. Consideration for Testimony: This expands the forms of compensation that are limited to include gifts, benefits, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration. Unlike a monetary payment, these forms of compensation may be difficult to assign exact values for. This may lead to difficulty in assessing whether the new $100 limit (it was $50) was complied with but on the other hand it makes it clear that these things should be included when determining consideration which is not the cause under existing law.

In addition, other forms of consideration are still available from prosecutors, such as plea bargains, bail consideration, and sentence modification. This compensation and information about the informant will still have to be recorded and filed, but it is not included in the $100 limitation.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/20/18)

None received

OPPOSITION: (Verified 6/20/18)

Association for Deputy District Attorneys

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles Police Protective League

Peace Officers Research Association of California

San Diego County District Attorney

ASSEMBLY FLOOR: 59-12, 6/1/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chiu, Chu, Dababneh, Daly, Eggman, Flora, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Mathis, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wood, Rendon

NOES: Travis Allen, Cervantes, Chávez, Chen, Cooley, Dahle, Frazier, Gloria, Harper, Patterson, Quirk-Silva, Voepel

NO VOTE RECORDED: Bigelow, Brough, Choi, Cooper, Cunningham, Fong, Maienschein, Mayes, Steinorth

Prepared by: Mary Kennedy / PUB. S. /

6/20/18 11:46:01

**** END ****

 THIRD READING  

Bill No: AB 359

Author:

Amended: 8/24/17 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/27/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

ASSEMBLY FLOOR: 59-12, 6/1/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill increases the amount of money that may be given to an in-custody informant and requires the prosecution to disclose additional information.

Senate Floor Amendments of 8/24/17 narrow the bill stating that it does not include a law enforcement officer or another person who engages a suspect in conversation at the specific direction of law enforcement in an attempt to gain information regarding criminal activity when the conversation is audio or video recorded under circumstances known as “Perkins Operations;” and, clarify when the prosecution shall provide the defendant with the required statement regarding the use of an in-custody informant.

ANALYSIS:

Existing law:

1. Provides that a jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant. (Penal Code §111.5)
2. 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.” (Penal Code § 1127a (a).)
   
3. Requires the court to provide a jury instruction, as specified, upon the request of a party, in any criminal trial or proceeding in which an in-custody informant testifies as a witness. (Penal Code § 1127a (b).)
   
4. Requires the prosecution, when calling an in-custody informant as a witness in a criminal trial, to file with the court a written statement setting out any and all consideration, as defined, promised to, or received by, the in-custody informant. (Penal Code § 1127a (c).)
   
5. Provides that a law enforcement or correctional official shall not give, offer, or promise to give any monetary payment in excess of fifty dollars in return for an in-custody informant’s testimony in a criminal proceeding. (Penal Code § 4001.1 (a).)
   

This bill:

1. Authorizes a member of the prosecution, law enforcement, or corrections to give, offer, or promise to give a monetary payment, property, gifts, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration with a combined value not to exceed $100 in return for or in connection with an in-custody informant’s cooperation in a criminal proceeding, as specified.
   
2. Provides that a prosecutor is not prohibited from giving or offering any plea bargain, bail consideration, reduction or modification of sentence, or immunity in consideration for cooperation and these types of consideration are not subject to the $100 limit, but must be documented.
   
3. Requires the prosecution, when intending to call an in-custody informant as a witness in a criminal trial, to file a statement with the court which includes specified information.
   
4. Requires the statement to be provided to the defendant or the defendant’s attorney no less than 30 days prior to the preliminary hearing.
   
5. Requires any member of the prosecution, law enforcement, or corrections who gives, expressly or impliedly offers or promises consideration to, or receives a request for consideration from, an in-custody informant to document the substance of all communications.
   
6. Provides that the documentation must be transmitted, as specified, to the district attorney and requires the district attorney to maintain a searchable electronic record of all documentation.
   
7. Defines an “in-custody informant” as “a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution.”
   
8. Defines “consideration” 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 participation in any information gathering activity, investigation or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.”

Background

1. Reliability of In-Custody Informants: Due to the nature of being incarcerated, in-custody informants are subject to pressures that may undermine the reliability of their testimony and the information that they provide. In-custody informants are motivated to leverage their information for consideration such as sentence reductions, financial assistance, and other benefits. These forms of consideration may incentivize informants to fabricate information or solicit information wrongfully, such as trading information between informants, pretending to be jailhouse lawyers for confessions, and even stealing legal documents from the cells of other inmates. (Rohrlich, Jailhouse Snitches: Trading Lies for Freedom (Apr. 16, 1989) L.A. Times <http://articles.latimes.com/1989-04-16/news/mn-2497_1_veteran-jailhouse-informants-jailhouse-snitches [as of March 15, 2017].)

Furthermore, there is a history of exploitation of in-custody informants by law enforcement, prosecution, and corrections officers. In-custody informants, once they are deemed cooperative, can become serial informants. While it is legal for law enforcement to use these informants, it is illegal for them to be deployed to coax incriminating statements from a defendant who's already been charged and has the constitutional right to an attorney and to remain silent. (Massiah v. U.S. (1964) 377 U.S. 201, 204; Pen. Code, § 4001.1, subd. (b).). A recent scandal in Orange County has demonstrated this exact type of abuse and exploitation. Several informants were allegedly moved in order to neighbor specific cells and wrongfully draw confessions from other inmates. In addition, the system in place lacked the transparency for defendants to know about these serial informants and how this information was gathered. This discovery has had severe consequences, causing demands for new trials, plea deals, and dropped charges. (Brown, Jailhouse Informant Scandal Rocking Criminal Justice System in Orange County (Oct. 22, 2011) ABC 7 <http://abc7.com/news/jailhouse-informant-scandal-rocking-oc-criminal-justice-system/1046811/ [as of March 15, 2017].)

This bill addresses these issues by creating a system that tracks the use of in-custody informants so that defendants may better address the reliability of the evidence used against them. Under current law “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant” in determining the admissibility of evidence. (Illinois v. Gates (1983) 462 US 213, 241-242.) Judges must currently evaluate the use of in-custody informant testimony and information by asking:

1. whether the police informant’s statement is factual rather than conclusory;
2. whether it rests on personal knowledge (Alexander v. Superior Court (1973) 9C3d 387, 391-392; People v. Murphy (1974) 42 CA3d 81, 87);
3. whether the police informant is credible; or
4. whether the informant is reliable (People v. Johnson (1990) 220 CA3d 742, 749.)
   
5. Consideration for Testimony: This expands the forms of compensation that are limited to include gifts, benefits, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration. Unlike a monetary payment, these forms of compensation may be difficult to assign exact values for. This may lead to difficulty in assessing whether the new $100 limit (it was $50) was complied with but on the other hand it makes it clear that these things should be included when determining consideration which is not the cause under existing law.

In addition, other forms of consideration are still available from prosecutors, such as plea bargains, bail consideration, and sentence modification. This compensation and information about the informant will still have to be recorded and filed, but it is not included in the $100 limitation.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/24/17)

Courage Campaign

Friends Committee on Legislation of California

Prison Law Office

OPPOSITION: (Verified 8/24/17)

Association for Deputy District Attorneys

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles County District Attorney’s Office

Los Angeles Police Protective League

Peace Officers Research Association of California

San Diego County District Attorney

ASSEMBLY FLOOR: 59-12, 6/1/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chiu, Chu, Dababneh, Daly, Eggman, Flora, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Mathis, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wood, Rendon

NOES: Travis Allen, Cervantes, Chávez, Chen, Cooley, Dahle, Frazier, Gloria, Harper, Patterson, Quirk-Silva, Voepel

NO VOTE RECORDED: Bigelow, Brough, Choi, Cooper, Cunningham, Fong, Maienschein, Mayes, Steinorth

Prepared by:

9/1/17 14:07:19

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 359 Hearing Date: June 27, 2017

Subject: In-Custody Informants

HISTORY

Source: American Civil Liberties Union

California Attorneys for Criminal Justice

Northern California Innocence Project

Prior Legislation: SB 687 (Leno) Chapter 152, Stats. 2011

SB 1589 (Romero) Vetoed 2008

SB 609 (Romero) Vetoed 2007

AB 276 (Floyd) Chapter 901, Stats. 1989

Support: Courage Campaign; Friends Committee on Legislation of California; Prison Law Office

Opposition: California District Attorneys Association; California Police Chiefs Association; California State Sheriffs’ Association; Los Angeles County District Attorney’s Office; Peace Officers Research Association of California; San Diego County District Attorney

Assembly Floor Vote: 59 - 12

PURPOSE

The purpose of this bill is to increase the amount of money that may be given to an in-custody informant and requires the prosecution to disclose additional information.

Existing law provides that a jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant. (Penal Code §111.5)

Existing law 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.” (Penal Code § 1127a (a).)

Existing law requires the court to provide a jury instruction, as specified, upon the request of a party, in any criminal trial or proceeding in which an in-custody informant testifies as a witness. (Penal Code § 1127a (b).)

Existing law requires the prosecution, when calling an in-custody informant as a witness in a criminal trial, to file with the court a written statement setting out any and all consideration, as defined, promised to, or received by, the in-custody informant. (Penal Code § 1127a (c).)

Existing law provides that a law enforcement or correctional official shall not give, offer, or promise to give any monetary payment in excess of fifty dollars in return for an in-custody informant’s testimony in a criminal proceeding. (Penal Code § 4001.1 (a).)

This bill authorizes a member of the prosecution, law enforcement, or corrections to give, offer, or promise to give a monetary payment, property, gifts, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration with a combined value not to exceed $100 in return for or in connection with an in-custody informant’s cooperation in a criminal proceeding, as specified.

This bill provides that a prosecutor is not prohibited from giving or offering any plea bargain, bail consideration, reduction or modification of sentence, or immunity in consideration for cooperation and these types of consideration are not subject to the $100 limit, but must be documented.

This bill requires the prosecution, when intending to call an in-custody informant as a witness in a criminal trial, to file a statement with the court which includes the following:

1. The substance of all communications between the informant and any member of the prosecution, law enforcement, or corrections regarding the informant’s possible testimony or information gathering;
   
2. Any and all consideration impliedly or expressly offered or promised to, requested or received by, the in-custody informant;
   
3. Information regarding any current or previous cases in which the in-custody informant has participated, as specified;
   
4. Whether the informant, while providing testimony or information to assist in the investigation of a suspect or the defendant, has recanted or modified the testimony or statement given;
   
5. The informant’s complete criminal history including pending charges or investigations in which the informant is a suspect;
   
6. Whether the informant is a substance abuser or has a history of substance abuse;
   
7. Any known or readily available information about the informant’s mental health; and
8. Any other information relevant to the informant’s credibility.
   

This bill requires the statement to be provided to the defendant or the defendant’s attorney no less than 30 days prior to the preliminary hearing.

This bill requires any member of the prosecution, law enforcement, or corrections who gives, expressly or impliedly offers or promises consideration to, or receives a request for consideration from, an in-custody informant to document the substance of all communications.

This bill provides that the documentation must be transmitted, as specified, to the district attorney and requires the district attorney to maintain a searchable electronic record of all documentation.

This bill defines an “in-custody informant” as “a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution.”

This bill defines “consideration” 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 participation in any information gathering activity, investigation or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.”

COMMENTS

1. Need for This Bill

According to the author:

Whereas jailhouse informants are widely used as a beneficial tool by law enforcement and prosecution, there are extreme concerns with their credibility and the accuracy of information they provide. Informants have a motive to fabricate corroborating stories with prosecution because of the inherent system which rewards them with money and special treatment for their information gathering and witness testimony. In short, AB 359 strengthens existing law by limiting incentives to jailhouse informants, increasing transparency requirements to ensure fair trials, and preventing the misuse of taxpayer funds.

2. Reliability of In-Custody Informants

Due to the nature of being incarcerated, in-custody informants are subject to pressures that may undermine the reliability of their testimony and the information that they provide. In-custody informants are motivated to leverage their information for consideration such as sentence reductions, financial assistance, and other benefits. These forms of consideration may incentivize informants to fabricate information or solicit information wrongfully, such as trading information between informants, pretending to be jailhouse lawyers for confessions, and even stealing legal documents from the cells of other inmates. (Rohrlich, Jailhouse Snitches: Trading Lies for Freedom (Apr. 16, 1989) L.A. Times <http://articles.latimes.com/1989-04-16/news/mn-2497_1_veteran-jailhouse-informants-jailhouse-snitches [as of March 15, 2017].)

Furthermore, there is a history of exploitation of in-custody informants by law enforcement, prosecution, and corrections officers. In-custody informants, once they are deemed cooperative, can become serial informants. While it is legal for law enforcement to use these informants, it is illegal for them to be deployed to coax incriminating statements from a defendant who's already been charged and has the constitutional right to an attorney and to remain silent. (Massiah v. U.S. (1964) 377 U.S. 201, 204; Pen. Code, § 4001.1, subd. (b).). A recent scandal in Orange County has demonstrated this exact type of abuse and exploitation. Several informants were allegedly moved in order to neighbor specific cells and wrongfully draw confessions from other inmates. In addition, the system in place lacked the transparency for defendants to know about these serial informants and how this information was gathered. This discovery has had severe consequences, causing demands for new trials, plea deals, and dropped charges. (Brown, Jailhouse Informant Scandal Rocking Criminal Justice System in Orange County (Oct. 22, 2011) ABC 7 <http://abc7.com/news/jailhouse-informant-scandal-rocking-oc-criminal-justice-system/1046811/> [as of March 15, 2017].)

This bill would address these issues by creating a system that tracks the use of in-custody informants so that defendants may better address the reliability of the evidence used against them. Under current law “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant” in determining the admissibility of evidence. (Illinois v. Gates (1983) 462 US 213, 241-242.) Judges must currently evaluate the use of in-custody informant testimony and information by asking:

1. whether the police informant’s statement is factual rather than conclusory;
2. whether it rests on personal knowledge (Alexander v. Superior Court (1973) 9C3d 387, 391-392; People v. Murphy (1974) 42 CA3d 81, 87);
3. whether the police informant is credible; or
4. whether the informant is reliable (People v. Johnson (1990) 220 CA3d 742, 749.)
   

The required disclosures in this bill would assist the court in assessing the admissibility of in-custody informant testimony and ensure that the defendant has access to information needed to fairly rebut allegations.

3. Consideration for Testimony

This expands the forms of compensation that are limited to include gifts, benefits, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration. Unlike a monetary payment, these forms of compensation may be difficult to assign exact values for. This may lead to difficulty in assessing whether the new $100 limit (it was $50) was complied with but on the other hand it makes it clear that these things should be included when determining consideration which is not the cause under existing law.

In addition, other forms of consideration are still available from prosecutors, such as plea bargains, bail consideration, and sentence modification. This compensation and information about the informant will still have to be recorded and filed, but it is not included in the $100 limitation.

4. Increased Disclosure for Prosecution and Law Enforcement

Current law requires the prosecution to provide a written statement including only the consideration promised to or received by the informant. (Penal Code § 1127a (c).) This bill will significantly expand the information required to be disclosed and the requirements for filing and maintaining this information from informants. Some of the required information, such as information concerning the informant’s mental health and abuse of substances, may be difficult to obtain and verify due to confidentiality laws. This bill will also require an electronic database to be maintained by the district attorney.

Although these changes may be burdensome, these requirements are tailored to address the specific reoccurring problems with reliability and in-custody informants. The need for disclosure is based on a balance of the public’s need to protect the flow of information and an individual’s right to prepare his defense. (Rovario v. U.S. (1957) 353 U.S. 53, 62). In the context of in-custody informants, the ability to prepare a defense is significantly harmed and increasing the disclosure requirements can counter that harm.

5. Argument in Support

According to the Northern California Innocence Project (NCIP)

Incentivized jailhouse informants are a major cause of wrongful convictions. Of the 349 DNA exonerations nationwide, 17% of these cases involved convictions based on statements by incentivized jailhouse informants. This issue is very real to our work and our clients: NCIP’s longest-held client has been wrongly imprisoned for 32 years behind the testimony of two career jailhouse informants. He will have an evidentiary hearing in April to prove his innocence. We have other clients who were also wrongfully convicted based on informant testimony. AB 359 is an important measure which will place additional safeguards to ensure that statements by jailhouse informants are at least properly evaluated and monitored.

Under current law, law enforcement may not provide monetary compensation to jailhouse informants in excess of a specific monetary value. The limit is a critical safeguard against the risk of incentivizing false testimony. However, current law fails to specifically impose the same restriction on non-monetary compensation (such as access to phone calls, television privileges, or other discretionary privileges). AB 359 would provide clarity that such a prohibition also applies to non-monetary benefits or incentives as well.

This bill also makes clear that important information about jailhouse informants is turned over to the defense prior to trial, ensuring greater transparency in the criminal justice system. The recent scandal in Orange County which revealed that the Orange County Sheriff’s Department had been operating a secret informant network, exemplifies the need for such transparency. This problem is not unique to Orange County.

Furthermore, to ensure that prosecutors are fulfilling their obligations to turn over discovery to the defense and to ensure that the reliability of jailhouse informants is fairly vetted by the courts and juries, AB 359 also requires that each district attorney’s office maintains a central electronic file containing information regarding the incentives and use of jailhouse informants by their agency and others.

AB 359 will provide necessary transparency to improve the integrity of criminal investigations and help restore the trust between law enforcement and the public. It will also ensure that constitutional rights of the accused are preserved, that guilty people are held accountable, and that the innocent are not wrongfully convicted.

6. Argument in Opposition

The San Diego County District Attorney opposes this bill stating:

Currently, the law requires disclosure of all of the materials encompassed by AB 359 that are in the possession of the prosecution team, favorable to the defendant, and material to the outcome of the case, pursuant to Brady v. Maryland and it progeny. Additionally, the law requires the prosecutor to turn over all statements of the defendant, except where the court finds good cause to deny, restrict, or defer the disclosure, such as where there are “threats or possible danger to the safety of a victim or witness, the possible loss of destruction of evidence, or the possible compromise of other investigations by law enforcement.” (Cal. Pen. Code § 1054.7.)

As 359 requires discovery above and beyond the rules of discovery enacted through the passage of Proposition 115, and does so in a manner that requires the prosecution to unreasonably search well beyond jurisdictional boundaries, and puts the safety of witnesses, and ongoing investigations in jeopardy. Indeed, it does so in a manner as to completely eliminate the practicality of using in-custody informants by making its terms not only impractical, but by their very nature, impossible.

First, it is important to note that AB 359 applies even when the credibility of an informant is not an issue, such as where there is tape recorded evidence of statements made by the defendant and heard by the informant.

Additionally, the requirement in AB 359 to file in court a written statement setting out “the substance of all communications between the informant and any member of the prosecution, or law enforcement or correctional agency, regarding the informant’s possible testimony or participation in information gathering” is extremely broad and dangerous. If the in-custody informant is also providing information on an active and on-going investigation that is tangentially related but not material to the charge before the court, disclosure could be devastating to the investigation and deadly to the cooperator.

Further, the disclosure of all cases in which the in-custody informant participated does not appear to be limited to situations where the informant provided information as an “in-custody” informant. In other, words, if the informant was a victim in a prior case and testified, the prosecution would have to search that and find it, regardless of the jurisdiction in which it occurred. If, in the past, the informant provided a lead on identifying a murderer, but that investigation went cold, the prosecution would be required to disclose the information and forever compromise the cold-case investigation.

AB 359 would require the disclosure of information that goes well and beyond that which is relevant and material to the credibility of a witness, disclosure of which is already required under criminal discovery laws.

Finally, the timing of the disclosure is contrary to logic where it required 30 days prior to a preliminary hearing, which is statutorily set within 10 days, or immediately upon possession.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 359

Author:(Jones-Sawyer)

As Amended Ver:March 16, 2017

Majority vote

SUMMARY: Increases the amount of money that may be given to an in-custody informant and requires the prosecution to disclose additional information. Specifically, this bill:

1. Authorizes a member of the prosecution, law enforcement, or corrections to give, offer, or promise to give a monetary payment, property, gifts, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration with a combined value not to exceed $100 in return for or in connection with an in-custody informant's cooperation in a criminal proceeding, as specified.
2. Provides that a prosecutor is not prohibited from giving or offering any plea bargain, bail consideration, reduction or modification of sentence, or immunity in consideration for cooperation and these types of consideration are not subject to the $100 limit, but must be documented.
3. Requires the prosecution, when intending to call an in-custody informant as a witness in a criminal trial, to file a statement with the court which includes the following:
   1. The substance of all communications between the informant and any member of the prosecution, law enforcement, or corrections regarding the informant's possible testimony or information gathering;
   2. Any and all consideration impliedly or expressly offered or promised to, requested or received by, the in-custody informant;
   3. Information regarding any current or previous cases in which the in-custody informant has participated, as specified;
   4. Whether the informant, while providing testimony or information to assist in the investigation of a suspect or the defendant, has recanted or modified the testimony or statement given;
   5. The informant's complete criminal history including pending charges or investigations in which the informant is a suspect;.
   6. Whether the informant is a substance abuser or has a history of substance abuse; and
   7. Any known or readily available information about the informant's mental health.
4. Requires the statement to be provided to the defendant or the defendant's attorney no less than 30 days prior to the preliminary hearing.
5. Requires any member of the prosecution, law enforcement, or corrections who gives, expressly or impliedly offers or promises consideration to, or receives a request for consideration from, an in-custody informant to document the substance of all communications.
6. Provides that the documentation must be transmitted, as specified, to the district attorney and requires the district attorney to maintain a searchable electronic record of all documentation.
7. Defines an "in-custody informant" as" a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution."
8. Defines "consideration" 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 participation in any information gathering activity, investigation or operation, or in return for, or in connection with, the informant's testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness."

EXISTING LAW:

1. 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."
2. Requires the court to provide a jury instruction, as specified, upon the request of a party, in any criminal trial or proceeding in which an in-custody informant testifies as a witness.
3. Requires the prosecution, when calling an in-custody informant as a witness in a criminal trial, to file with the court a written statement setting out any and all consideration, as defined, promised to, or received by, the in-custody informant.
4. Provides that a law enforcement or correctional official shall not give, offer, or promise to give any monetary payment in excess of $50 in return for an in-custody informant's testimony in a criminal proceeding.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: "Whereas jailhouse informants are widely used as a beneficial tool by law enforcement and prosecution, there are extreme concerns with their credibility and the accuracy of information they provide. Informants have a motive to fabricate corroborating stories with prosecution because of the inherent system which rewards them with money and special treatment for their information gathering and witness testimony. In short, AB 359 strengthens existing law by limiting incentives to jailhouse informants, increasing transparency requirements to ensure fair trials, and preventing the misuse of taxpayer funds."

Analysis Prepared by: Adam Smith / PUB. S. / (916) 319-3744 FN: 0000046

Date of Hearing: March 21, 2017

Consultant: Adam Smith

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:March 16, 2017

SUMMARY:

Increases the amount of money that may be given to an in-custody informant and requires the prosecution to disclose additional information. Specifically, this bill:

1. Authorizes a member of the prosecution, law enforcement, or corrections to give, offer, or promise to give a monetary payment, property, gifts, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration with a combined value not to exceed $100 in return for or in connection with an in-custody informant’s cooperation in a criminal proceeding, as specified.
   
2. Provides that a prosecutor is not prohibited from giving or offering any plea bargain, bail consideration, reduction or modification of sentence, or immunity in consideration for cooperation and these types of consideration are not subject to the $100 limit, but must be documented.
   
3. Requires the prosecution, when intending to call an in-custody informant as a witness in a criminal trial, to file a statement with the court which includes the following:
   
   1. The substance of all communications between the informant and any member of the prosecution, law enforcement, or corrections regarding the informant’s possible testimony or information gathering;
      
   2. Any and all consideration impliedly or expressly offered or promised to, requested or received by, the in-custody informant;
      
   3. Information regarding any current or previous cases in which the in-custody informant has participated, as specified;
      
   4. Whether the informant, while providing testimony or information to assist in the investigation of a suspect or the defendant, has recanted or modified the testimony or statement given;
      
   5. The informant’s complete criminal history including pending charges or investigations in which the informant is a suspect;.
      
   6. Whether the informant is a substance abuser or has a history of substance abuse; and
      
   7. Any known or readily available information about the informant’s mental health.
      
4. Requires the statement to be provided to the defendant or the defendant’s attorney no less than 30 days prior to the preliminary hearing.
   
5. Requires any member of the prosecution, law enforcement, or corrections who gives, expressly or impliedly offers or promises consideration to, or receives a request for consideration from, an in-custody informant to document the substance of all communications.
   
6. Provides that the documentation must be transmitted, as specified, to the district attorney and requires the district attorney to maintain a searchable electronic record of all documentation.
   
7. Defines an “in-custody informant” as “a person, other than a codefendant, percipient witness, accomplice, or coconspirator who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both the suspect or defendant and the informant are housed within a correctional institution.”
   
8. Defines “consideration” 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 participation in any information gathering activity, investigation or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.”
   

EXISTING LAW:

1. 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.” (Pen. Code, § 1127a, subd. (a).)
   
2. Requires the court to provide a jury instruction, as specified, upon the request of a party, in any criminal trial or proceeding in which an in-custody informant testifies as a witness. (Pen. Code, § 1127a, subd. (b).)
   
3. Requires the prosecution, when calling an in-custody informant as a witness in a criminal trial, to file with the court a written statement setting out any and all consideration, as defined, promised to, or received by, the in-custody informant. (Pen. Code, § 1127a, subd. (c).)
   
4. Provides that a law enforcement or correctional official shall not give, offer, or promise to give any monetary payment in excess of fifty dollars in return for an in-custody informant’s testimony in a criminal proceeding. (Pen. Code, § 4001.1, subd. (a).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Whereas jailhouse informants are widely used as a beneficial tool by law enforcement and prosecution, there are extreme concerns with their credibility and the accuracy of information they provide. Informants have a motive to fabricate corroborating stories with prosecution because of the inherent system which rewards them with money and special treatment for their information gathering and witness testimony. In short, AB 359 strengthens existing law by limiting incentives to jailhouse informants, increasing transparency requirements to ensure fair trials, and preventing the misuse of taxpayer funds.”
2. Reliability of In-Custody Informants: Due to the nature of being incarcerated, in-custody informants are subject to pressures that may undermine the reliability of their testimony and the information that they provide. In-custody informants are motivated to leverage their information for consideration such as sentence reductions, financial assistance, and other benefits. These forms of consideration may incentivize informants to fabricate information or solicit information wrongfully, such as trading information between informants, pretending to be jailhouse lawyers for confessions, and even stealing legal documents from the cells of other inmates. (Rohrlich, Jailhouse Snitches: Trading Lies for Freedom (Apr. 16, 1989) L.A. Times <http://articles.latimes.com/1989-04-16/news/mn-2497_1_veteran-jailhouse-informants-jailhouse-snitches [as of March 15, 2017].)

Furthermore, there is a history of exploitation of in-custody informants by law enforcement, prosecution, and corrections officers. In-custody informants, once they are deemed cooperative, can become serial informants. While it is legal for law enforcement to use these informants, it is illegal for them to be deployed to coax incriminating statements from a defendant who's already been charged and has the constitutional right to an attorney and to remain silent. (Massiah v. U.S. (1964) 377 U.S. 201, 204; Pen. Code, § 4001.1, subd. (b).). A recent scandal in Orange County has demonstrated this exact type of abuse and exploitation. Several informants were allegedly moved in order to neighbor specific cells and wrongfully draw confessions from other inmates. In addition, the system in place lacked the transparency for defendants to know about these serial informants and how this information was gathered. This discovery has had severe consequences, causing demands for new trials, plea deals, and dropped charges. (Brown, Jailhouse Informant Scandal Rocking Criminal Justice System in Orange County (Oct. 22, 2011) ABC 7 <http://abc7.com/news/jailhouse-informant-scandal-rocking-oc-criminal-justice-system/1046811/> [as of March 15, 2017].)

This bill would address these issues by creating a system that tracks the use of in-custody informants so that defendants may better address the reliability of the evidence used against them. Under current law “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant” in determining the admissibility of evidence. (Illinois v. Gates (1983) 462 US 213, 241-242.) Judges must currently evaluate the use of in-custody informant testimony and information by asking:

1. whether the police informant’s statement is factual rather than conclusory;
2. whether it rests on personal knowledge (Alexander v. Superior Court (1973) 9C3d 387, 391-392; People v. Murphy (1974) 42 CA3d 81, 87);
3. whether the police informant is credible; or
4. whether the informant is reliable (People v. Johnson (1990) 220 CA3d 742, 749.)
   

The information provided by the requirements proposed in AB 359 would ensure that courts can better assess the admissibility of in-custody informant testimony and that the defendant has access to information needed to fairly rebut allegations.

1. Difficulty of Valuing Consideration: AB 359 expands the forms of compensation that are limited to include gifts, benefits, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration. Unlike a monetary payment, these forms of compensation may be difficult to assign exact values for. This vagueness could lead to difficulty in assessing whether or not law enforcement, prosecution and corrections have complied with the prescribed limitations on compensation in exchange for information and testimony. In addition, other forms of consideration are still available from prosecutors, such as plea bargains, bail consideration, and sentence modification. While this compensation and information about the informant will still have to be recorded and filed, it potentially undermines the value limit placed on other forms of compensation.
   
2. Increased Disclosure for Prosecution and Law Enforcement: Current law requires the prosecution to provide a written statement including only the consideration promised to or received by the informant. (Pen. Code, § 1127a, subd. (c).) AB 359 will significantly expand the information required to be disclosed and the requirements for filing and maintaining this information from informants. Some of the required information, such as information concerning the informant’s mental health and abuse of substances, may be difficult to obtain and verify due to confidentiality laws. Furthermore, AB 359 will require an electronic database to be maintained by the district attorney.

Although these changes are burdensome, these requirements are tailored to address the specific reoccurring problems with reliability and in-custody informants. The need for disclosure is based on a balance of the public’s need to protect the flow of information and an individual’s right to prepare his defense. (Rovario v. U.S. (1957) 353 U.S. 53, 62). In the context of in-custody informants, the ability to prepare a defense is significantly harmed and increased disclosure requirements are therefore justifiable.

1. Argument in Support: According to the Northern California Innocence Project (NCIP), “Incentivized jailhouse informants are a major cause of wrongful convictions. Of the 349 DNA exonerations nationwide, 17% of these cases involved convictions based on statements by incentivized jailhouse informants. This issue is very real to our work and our clients: NCIP’s longest-held client has been wrongly imprisoned for 32 years behind the testimony of two career jailhouse informants. He will have an evidentiary hearing in April to prove his innocence. We have other clients who were also wrongfully convicted based on informant testimony. AB 359 is an important measure which will place additional safeguards to ensure that statements by jailhouse informants are at least properly evaluated and monitored.
   
   “Under current law, law enforcement may not provide monetary compensation to jailhouse informants in excess of a specific monetary value. The limit is a critical safeguard against the risk of incentivizing false testimony. However, current law fails to specifically impose the same restriction on non-monetary compensation (such as access to phone calls, television privileges, or other discretionary privileges). AB 359 would provide clarity that such a prohibition also applies to non-monetary benefits or incentives as well.
   
   “This bill also makes clear that important information about jailhouse informants is turned over to the defense prior to trial, ensuring greater transparency in the criminal justice system. The recent scandal in Orange County which revealed that the Orange County Sheriff’s Department had been operating a secret informant network, exemplifies the need for such transparency. This problem is not unique to Orange County.
   
   “Furthermore, to ensure that prosecutors are fulfilling their obligations to turn over discovery to the defense and to ensure that the reliability of jailhouse informants is fairly vetted by the courts and juries, AB 359 also requires that each district attorney’s office maintains a central electronic file containing information regarding the incentives and use of jailhouse informants by their agency and others.

“AB 359 will provide necessary transparency to improve the integrity of criminal investigations and help restore the trust between law enforcement and the public. It will also ensure that constitutional rights of the accused are preserved, that guilty people are held accountable, and that the innocent are not wrongfully convicted.”

1. Prior Legislation: AB 276 (Floyd), Chapter 901, Statutes of 1989, defines “in-custody informant” and provides guidelines for the use of an in-custody informant’s testimony, including a limitation on compensation for testimony.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberty Union of California (Co-Sponsor)

California Attorneys for Criminal Justice (Co-Sponsor)

Northern California Innocence Project (Co-Sponsor)

California Innocence Project

Opposition

None

Analysis Prepared by: