Today's Law As Amended

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AB-359 In-custody informants.(2017-2018)



SECTION 1.

 Section 1127a of the Penal Code is amended to read:

1127a.
 (a) As used in this section, an “in-custody informant” means a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is  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 held housed  within a correctional institution.
(b) In any criminal trial or proceeding in which an in-custody informant testifies as a witness, upon the request of a party, the court shall instruct the jury as follows:
“The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.”
(c) When the prosecution calls  intends to call  an in-custody informant as a witness in any criminal trial, contemporaneous with the calling of that witness, the  the  prosecution shall file with the court a written statement setting out any and all consideration  the substance of all communications between the informant and any member of the prosecution, or a law enforcement or correctional agency, regarding the informant’s 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 statement shall also include all of the following: 
(1) Information regarding any current or previous cases in which the in-custody informant is providing or provided testimony or information to assist in the investigation of a suspect or the prosecution of a defendant, including the substance of all communications between the informant and any member of the prosecution, or a law enforcement or correctional agency regarding the informant’s possible testimony or participation in information gathering, the nature of the information provided in that case, and what consideration was impliedly or expressly offered or promised to, or requested or received by, the in-custody informant.
(2) Whether at any time in another case in which the informant is providing or provided information or testimony, the informant recanted or modified the testimony or statement given.
(3) The informant’s complete criminal history, including pending criminal charges or investigations in which the informant is a suspect.
(4) Whether the informant is a substance abuser or has a history of substance abuse.
(5) Any known or readily available information about the informant’s mental health.
(6) Any other information relevant to the informant’s credibility.
(d)  The statement filed with the court shall not expand or limit the defendant’s right to discover information that is otherwise provided by law. The statement shall be provided to the defendant or the defendant’s attorney prior to trial  no less than 30 days prior to the preliminary hearing  and the information contained in the statement shall be subject to rules of evidence.
(d) (e)  For purposes of subdivision (c), “consideration” means 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.

SECTION 1.SEC. 2.

 Section 4001.1 of the Penal Code is amended to read:

4001.1.
 (a) No  A member of a prosecutorial entity or a  law enforcement or correctional official agency  shall not  give, offer, or promise to give any monetary payment  payments, property, gifts, financial assistance, benefits, rewards, or amelioration of current or future conditions of incarceration with a combined value  in excess of fifty  one hundred  dollars ($50) ($100)  in return for or in connection with  an in-custody informant’s testimony in any criminal proceeding. Nothing contained herein shall prohibit payments incidental to the informant’s testimony  a criminal proceeding or participation in any information-gathering activity, investigation, or operation, or both that testimony and participation. If a person receives benefits not routinely provided to other persons housed in the correctional institution and offers testimony or participates in an information-gathering activity, the documentation requirements of subdivision (c) and the disclosure requirements of subdivision (c) of Section 1127a shall apply. This section does not prohibit payments necessary to secure the informant’s presence at trial,  such as expenses incurred for witness or immediate family relocation, lodging, housing, meals, phone telephone  calls, travel, or witness fees authorized by law, provided those payments are supported by appropriate documentation demonstrating that the money was used for the purposes for which it was given. This subdivision does not prohibit the prosecutor from giving or offering any plea bargain, bail consideration, reduction or modification of sentence, or immunity in consideration for an in-custody informant’s testimony or participation in an information-gathering activity, investigation, or operation, and these types of consideration shall not be included in the consideration that is subject to the one-hundred-dollar ($100) limit, but shall be documented pursuant to subdivision (c) and disclosed as required pursuant to subdivision (c) of Section 1127a. 
(b) No A  law enforcement agency and no or an  in-custody informant acting as an agent for the agency, may take some  agency shall not take  action, beyond merely listening to statements of a defendant, that is deliberately designed to elicit incriminating remarks.
(c) Any member of the prosecution, or a law enforcement or correctional agency who gives, expressly or impliedly offers, or promises consideration to, or receives a request for consideration from, an in-custody informant shall document in writing the substance of all communications regarding the informant’s possible testimony or participation in information gathering, and the consideration requested, given, expressly or impliedly offered, or promised. Any documentation required to be kept under this subdivision shall be transmitted to the district attorney of the county in which the in-custody informant was or is held no less frequently than once a week and shall be made discoverable. If information or testimony from the in-custody informant is used in a prosecution in a county other than the county where the informant was held when the informant gathered the information, the documentation shall additionally be transmitted to the district attorney of the county where the case is prosecuted. The district attorney shall maintain a searchable electronic record of all documentation required under this subdivision in a format that allows for all information regarding a particular informant to be readily retrieved.
(d) As used in this section, the following definitions apply:
(1) “Consideration” has the meaning set forth in Section 1127a.
(c)  As used  (2)   in this section, an  An  “in-custody informant” means a person described in subdivision (a) of Section 1127a.