Illinois Commission Report Recommendation

California Compliance

Comments on California Law

Recommendation 1: After a suspect has been identified, the police should continue to pursue all reasonable lines of inquiry whether these point towards or away from the suspect

NOT MET

Not required under current California law and current case law excuses failure to pursue leads, interview witnesses and collect evidence.

Recommendation 2: (a) The police must list on schedules all existing items of relevant evidence, including exculpatory evidence, and their location, (b) Record-keeping obligations must be assigned to specific police officers or employees who must certify their compliance in writing to the prosecutor; (c) The police must give copies of the schedules to the prosecution, (d) The police must give access to all investigatory materials in their possession.

NOT MET

No requirement under current California law.

Recommendation 3: In a death eligible case, representation by the public defender during a custodial interrogation should be authorized by the [state legislature] when a suspect requests the advice of counsel, and where there is a reasonable belief that the suspect is indigent. To the extent that there is some doubt about the indigency of the suspect, police should resolve the doubt in favor of allowing the suspect to have access to the public defender.

NOT MET

No requirement under current California law. The public defender is only appointed for adults at the arraignment. Therefore, invocation of right to counsel by an arrestee results in returning arrestee to custody until arraignment. Arrestees often "voluntarily" waive their right to counsel while awaiting arraignment. Also, it is arguably permissible for officers to deliberately violate Miranda in order to obtain confessions which can be used for further investigation and impeachment if the defendant testifies.

Recommendation 4: Custodial interrogations 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 interrogation process. (Dissent)

NOT MET

No requirement under current California law. Video taping is common but not required. Also, it is common to video tape only after preliminary discussions with the defendant have taken place.

Recommendation 5: Any statements by a homicide suspect which are not recorded should be repeated to the suspect on tape, and his or her comments recorded.

NOT MET

No requirement under current California law.

Recommendation 6: There are circumstances in which videotaping may not be practical, and some uniform method of recording such interrogations, such as tape recording, should be established. Police investigators should carry tape recorders for use when interviewing suspects in homicide cases outside the station, and all such interviews should be audiotaped.

NOT MET

No requirement under current California law.

Recommendation 7: The [state eavesdropping act] should be amended to permit police taping of statements without the suspects' knowledge or consent in order to enable the videotaping and audio taping of statements as recommended by the Commission. The amendment should apply only to homicide cases, where the suspect is aware that the person asking the question is a police officer.

NOT MET

California Penal Code Section 633 allows a blanket exception to the California "eavesdropping statutes" for law enforcement personnel or anyone acting at their direction. Therefore, there is no restriction, as recommended, that the suspect be aware that s/he is talking with a police officer or that, in fact, the person be a police officer.

Recommendation 8: The police should electronically record interviews conducted of significant witnesses in homicide cases where it is reasonably foreseeable that their testimony may be challenged at trial

NOT MET

No requirement under current law.

Recommendation 9: Police should be required to make a reasonable attempt to determine the suspect's mental capacity before interrogation, and if a suspect is determined to be mentally retarded, the police should be limited to asking nonleading questions and prohibited from implying they believe the suspect is guilty.

NOT MET

No requirement under current California law.

Recommendation 10: When practicable, police departments should insure that the person who conducts the lineup or photospread should not be aware of which member of the lineup or photo spread is the suspect (dissent)

NOT MET

No requirement under current California law. In practice, to the contrary, the investigating officers usually conduct the identification procedures.

Recommendation 11: (A) Eyewitnesses should be told explicitly that the suspected perpetrator might not be in the the lineup or photospread, and therefore they should not feel they must make an identification; (B) Eyewitnesses should also be told that they should not assume that the person administering the lineup or photospread knows which person is the suspect in the case.

NOT MET

No requirement under current California law. A version of (a) is often given (but not required), however, (b) is not.

Recommendation 12: If the administrator of the lineup or photospread does not know who the suspect is, a sequential procedure should be used, so that the eyewitness views only one lineup member or photo at a time and makes a decision (that is the perpetrator or that is not the perpetrator) regarding each person before viewing another lineup member or photo. (Dissent - too awkward)

NOT MET

No requirement under current California law.

Recommendation 13: Suspects should not stand out in the lineup or photo spread as being different from the distractors, based on the eyewitnesses previous description of the perpetrator, or based on other factors that would draw attention to the suspect

NOT MET

No requirement under current California law. Current case law may require suppression at trial of an unduly suggestive line-up or photo spread. However, the specifics of this recommendation are not met. Also, research shows that a false identification at an improper line-up or photo spread can significantly contaminate the identifying witnesses’ testimony. See, Wells, et al., Eyewitness Identification Procedure, 22 Law and Human Behavior 1 (1998).

Recommendation 14: A clear written statement should be made of any statements made by the eyewitness at the time of the identification procedure as to his or her confidence that the identified person is or is not the actual culprit. This statement should be recorded prior to any feedback by law enforcement personnel

NOT MET

No requirement under current California law. (See comment on contamination above)

Recommendation 15: When practicable, the police should videotape lineup procedures, including the witness' confidence statement.

NOT MET

No requirement under current California law.

Recommendation 16: All police who work on homicide cases should receive periodic training in the following areas and experts on these subjects should be retained to conduct training and prepare manuals on these topics: (1) The risks of false testimony by in-custody informants ("jailhouse snitches"); (2) The risks of false testimony by accomplice witnesses; (3) The dangers of tunnel vision or confirmatory bias; (4) The risks of wrongful convictions in homicide cases; (5) Police investigative and interrogation methods; (6) Police investigating and reporting of exculpatory evidence; (7) Forensic evidence; and (8) The risks of false confessions.

NOT MET

No requirement under current California law.

Recommendation 17  Police academies, police agencies, and the [department of corrections] should include within their training curricula information on consular rights and the notification obligations to be followed during the arrest and detention of foreign nationals.

NOT MET

No requirement under current California law. There may be some training on this issue but it is not mandatory nor is it universal.

Recommendation 18: The [state attorney general] should remind all law enforcement agencies of their notification obligations under the Vienna Convention on Consular Relations and undertake regular reviews of the measures taken by state and local police to ensure full compliance. This could include publication of a guide based on the United States State Department Manual.

NOT MET

California Penal Code Section 834(c) now requires advisement of rights under the VCCR. It is unknown how much discussion of this issue has occurred or the extent to which it has reached the officers and detectives working the actual cases. There is no requirement of regular reviews to ensure full compliance.

Recommendation 19: The statue relating to the [state law enforcement training standards board] should be amended to add police perjury (regardless of whether there is a criminal conviction) as a basis upon which the Board may revoke certification of a peace officer

NOT MET

No requirement under current California law.

Recommendation 20: An independent state forensic laboratory should be created, operated by civilian personnel with its own budget separate from any policy agency or supervision. (Dissent: cost & not a strong enough measure)

NOT MET

No requirement under current California law. The State of California does have a State Department of Justice Forensic Laboratory within its Division of Law Enforcement. It is not independent as contemplated by the recommendation and is used selectively by law enforcement. It is not available for use by the defense, even on court order.

Recommendation 21: Adequate funding should be provided by the [state] to hire and train both entry level and supervisory level forensic scientists to support expansion of DNA testing and evaluation Support should also be provided for additional up-to-date facilities for DNA testing The state should be prepared to outsource by sending evidence to private companies for analysis when appropriate

NOT MET

No requirement under current California law. Some funding and outsourcing is available but not within the contemplation of the recommendation.

Recommendation 22: The commission supports the [state supreme court rule] establish minimum standards for DNA evidence.

NOT MET

No requirement under current California law.

Recommendation 23: The federal government and state should provide adequate funding to enable the development of a comprehensive DNA database

NOT MET

No requirement under current federal or state law. The proposed Innocence Protection Act has not been enacted.

Recommendation 24: State Statutes should be amended to provide that in a capital case a defendant may apply to the court for an order to obtain a search of the DNA database to identify others who may be guilty of the crime.

NOT MET

No requirement under current California law.

Recommendation 25: In capital cases forensic testing, including DNA testing pursuant to state law, should be permitted where it has a scientific potential to produce new, noncummulative evidence relevant to the defendant's assertion of actual innocence even though the results may not completely exonerate the defendant.

NOT MET

No requirement under current California law. California Penal Code Sections 1405 and 1054.9(e), effective January 1, 2003, address some of the issues in this recommendation.

Recommendation 26: The provisions governing the capital litigation trust fund should be construed broadly so as to provide a source of funding for forensic testing pursuant to state law when the defendant faces the possibility of a capital sentence.

MET WITH QUALIFICATIONS

California Penal Code Section 987.9 provides for the funds for capital defense at the trial level in cases where the defendant can show indigence. Individual trial court judges have wide discretion to grant or deny particular requests. Furthermore, funds available on direct appeal and habeas corpus proceedings are limited and are not sufficient for expensive procedures or complex cases

Recommendation 27: The current list of 20 eligibility factors should be reduced to a smaller number 

NOT MET

California currently has a list of 25 separate eligibility factors under California Penal Code Section 190.2 and the additional sections referred to in 190.3, many of which have subparts.

Recommendation 28: There should be only five eligibility factors [murdering multiple victims, killing a police officer or firefighter, killing an officer or inmate in a correctional institution, murdering to obstruct justice or torturing the victim. 

NOT MET

See Comment above.

Recommendation 29: The [state attorney general] and the [state's prosecutor association] should adopt recommendations as to the procedures [prosecutors] should follow in deciding whether or not to seek the death penalty, but these recommendations should not have the force of law, or be imposed by court rule or legislation.

NOT MET

There is great disparity in the filing decisions from county to county in California, thus giving rise to a serious geographical denial of equal protection.

Recommendation 30: The death sentencing statute should be revised to include a mandatory review of death eligibility undertaken by a statewide review committee. In the absence of legislative action to make this a mandatory scheme, the Governor should make a commitment to setting up a voluntary review process, supported by the presumption that the Governor will commute the death sentences of defendants when the prosecutor has not participated in the voluntary review process, unless the prosecutor can offer a compelling explanation, based on exception circumstances, for the failure to submit the case for review.. . . [Dissent: recommendation goes too far]

NOT MET

No requirement under current California law.

Recommendation 31: The Commission supports [Illinois] Supreme Court Rule 416(c) requiring that the state announce its intention to seek the death penalty, and the factor to be relied upon, as soon as practicable but in no event later than 120 days after arraignment.

NOT MET

No requirement under current California law. The death penalty itself can be elected at almost any time by the prosecutor and, even after initially declining, the prosecutor can decide to pursue it. There is a requirement that the prosecution disclose aggravating evidence within a "reasonable time" prior to trial under California Penal Code Section 190.3 but no requirement of announcing intention to seek the death penalty at a particular time or to announce the factors to be relied upon.

Recommendation 32: The [state supreme court] should give consideration to encouraging the [state administrative office of the courts] to undertake a concerted effort to educate trial judges throughout the state in the parameters of the capital crimes litigation act and the funding sources available for defense of capital cases.

NOT MET

No requirement under current California law although there is non-mandatory judicial education.

Recommendation 33: Expanded judicial training to be required prior to assignment of a capital case to a judge.

NOT MET

No requirement under current California law.

Recommendation 34: In light of the changes in the Illinois Supreme Court rules governing the discovery procedures capital cases, the Supreme Court should give consideration to ways the Court can insure that particularized training is provided to trial judges with respect to implementation of the new rules governing capital litigation, especially with respect to the management of the discovery process.

NOT MET

No requirement under current California law.

Recommendation 35: All judges who are trying capital cases should receive periodic training in the following areas and experts on these subjects should be retained to conduct training and prepare manuals on these topics: (1) The risks of false testimony by in-custody informants ("jailhouse snitches"); (2) The risks of false testimony by accomplice witnesses; (3) The dangers of tunnel vision or confirmatory bias; (4) The risks of wrongful convictions in homicide cases' (5) Police investigative and interrogation methods; (6) Police investigating and reporting of exculpatory evidence; (7) Forensic evidence; and (8) The risks of false confessions.

NOT MET

No requirement under current California law.

Recommendation 36: The Illinois Supreme Court and the Administrative office of the courts should consider development of and provide sufficient funding for state-wide materials to train judges in capital cases, and additional staff to provide research support.

NOT MET

No requirement under current California law. California has some resources but training is not mandatory and does not meet the recommendations.

Recommendation 37: The Illinois Supreme Court should consider ways in which information regarding relevant law and other resources can be widely disseminated to those trying capital cases, through development of a digest of applicable law by the Supreme Court and wider publican of the outline of issues developed by the State Appellate Defender or the State Appellate Prosecutor and/or Attorney General

NOT MET

No requirement under current California law.

Recommendation 38: The Illinois Supreme Court, or the chief judge of the various judicial districts throughout the state, should consider implementation of a process to certify judges who are qualified to hear capital cases either by virtue of experience or training. Trial court judges should be certified as qualified to hear capital cases based upon completion of specialized training and based upon their experience in hearing criminal cases. Only such certified judges should hear capital cases.

NOT MET

No requirement under current California law.

Recommendation 39: The [state supreme court] should consider appointment of a standing committee of trial judges and/or appellate justices familiar with capital cases management to provide resources to trial judges throughout the state who are responsible for trying capital cases.

NOT MET

No requirement under current California law.

Recommendation 40: The commission supports new Illinois Supreme Court Rule 416(d) regarding qualifications for counsel in capital cases.

NOT MET

No requirement under current California law regarding minimum qualifications for retained counsel. There are minimum requirements for appointed counsel at trial (California Rule of Court 76.6) and on direct appeal and habeas corpus (California Rule of Court 4.117) but these do not apply to retained counsel.

Recommendation 41: The Commission supports new Illinois Supreme Court  Rule 701(b) which imposes the requirement that those appearing as lead or co-counsel in a capital case be first admitted to the Capital Litigation Bar under Rule 714.

NOT MET

No requirement under current California law.

Recommendation 42: The commission supports new Illinois Supreme Court rule 714 which imposes requirements on the qualifications of attorneys handling capital cases.

NOT MET

No requirement under current California law regarding minimum qualifications for retained counsel. There are minimum requirements for appointed counsel at trial (California Rule of Court 76.6) and on direct appeal and habeas corpus (California Rule of Court 4.117) but these do not apply to retained counsel.

Recommendation 43: The office of the State Appellate Defender should facilitate the dissemination of information with respect to defense counsel qualified under the proposed Supreme Court process.

NOT MET

No requirement under current California law.

Recommendation 44:The commission supports efforts to have training for prosecutors and defenders in capital litigation, and to have funding provided to insure that training programs continue to be of the highest quality.

NOT MET

No requirement under current California law, particularly for public funding. Limited programs in recent years have been funded and put on by the Habeas Corpus Resource Center. Private organizations, The California Public Defender’s Association and the California Attorneys for Criminal Justice, hold more extensive training sessions which are available to capital case defense lawyers.

Recommendation 45: All prosecutors and defense lawyers who are members of the Capital Trial Bar who are trying capital cases should receive periodic training in the following areas and experts on these subjects should be retained to conduct training and prepare manuals on these topics: (1) The risks of false testimony by in-custody informants ("jailhouse snitches"); (2) The risks of false testimony by accomplice witnesses; (3) The dangers of tunnel vision or confirmatory bias; (4) The risks of wrongful convictions in homicide cases; (5) Police investigative and interrogation methods; (6) Police investigating and reporting of exculpatory evidence; (7) Forensic evidence; and (8) The risks of false confessions.

NOT MET

No requirement under current California law.

Recommendation 46: The Commission supports new Illinois Supreme Court rule 416(e) which permits discovery deposition in capital cases on leave of the court for good cause

NOT MET

No requirement under current California law.

Recommendation 47: The Commission supports the provisions of the new Illinois Supreme Court rule 416(f) mandating case management conferences in capital cases. The Illinois Supreme Court should consider adoption of a rule requiring a final case management conferences in capital cases to insure that there has been compliance with the newly mandated rules, that discovery is complete and that the case is fully prepared for trial.

NOT MET

No requirement under current California law.

Recommendation 48: The Commission supports Illinois Supreme Court Rule 416(g) which requires that a certificate be filed by the state indicating that a conference has been held with all those persons who participated in the investigation or trial preparation of the case and that all the information required to be disclosed has been disclosed.

NOT MET

No requirement under current California law.

Recommendation 49: The Illinois Supreme Court should adopt a rule defining "exculpatory evidence" in order to provide guidance to counsel in making appropriate disclosures. The commission recommends the following definition: "Exculpatory information includes, but may not be limited, to all information that is material and favorable to the defendant because it tends to: (1) cast doubt on defendant's guilt as to any essential element in any count in the indictment or information; (2) cast doubt on the admissibility of evidence that the state anticipates offering in its case-in-chief that might be subject to a motion to suppress or exclude; (3) cast doubt on the credibility or accuracy of any evidence that the state anticipates offering in its case-in-chief; or (4) diminishes the degree of the defendant's culpability or mitigate the defendant's potential sentence.

NOT MET

No requirement under current California law. There is case law, both federal and state, on exculpatory evidence but no statute or rule implementing the broad definition contained in the recommendation requiring disclosure.

Recommendation 50: Illinois law should require that any discussion with a witness or a representative of a witness concerning benefits, potential benefits or detriments conferred on a witness by any prosecutor, police official, or anyone else, should be reduced to writing, and should be disclosed to the defense in advance of trial.

NOT MET

No requirement under current California law.