Today's Law As Amended


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AB-679 Criminal trials: testimony of in-custody informants.(2021-2022)



As Amends the Law Today


SECTION 1.

 Section 1111.5 of the Penal Code is repealed.

1111.5.
 (a) 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. The testimony of an in-custody informant shall be corroborated by other evidence that connects the defendant with the commission of the offense, the special circumstance, or the evidence offered in aggravation to which the in-custody informant testifies. Corroboration is not sufficient if it merely shows the commission of the offense or the special circumstance or the circumstance in aggravation. Corroboration of an in-custody informant shall not be provided by the testimony of another in-custody informant unless the party calling the in-custody informant as a witness establishes by a preponderance of the evidence that the in-custody informant has not communicated with another in-custody informant on the subject of the testimony.
(b) As used in this section, “in-custody informant” means a person, other than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the informant were held within a city or county jail, state penal institution, or correctional institution. Nothing in this section limits or changes the requirements for corroboration of accomplice testimony pursuant to Section 1111.

SEC. 2.

 Section 1111.5 is added to the Penal Code, to read:

1111.5.
 (a) In a prosecution for any crime, testimony by, or information obtained by, an in-custody informant regarding a statement made by the defendant, while the defendant was in custody, shall not be admissible as evidence against the defendant.
(b) As used in this section, “in-custody informant” means a person, other than a codefendant, accomplice, coconspirator, or percipient witness to the offense for which the defendant is on trial, whose testimony or information is based upon statements made by the defendant while both the defendant and informant were in custody or the informant reasonably appeared to the defendant to be in custody.
(c) This section does not apply to either of the following:
(1) Testimony by an in-custody informant as part of a law enforcement operation in which all of the following requirements are met:
(A) The in-custody informant is an undercover law enforcement officer or agent of law enforcement.
(B) The defendant’s right to counsel under the Sixth Amendment to the United States Constitution and Section 15 of Article 1 of the California Constitution has not yet attached to the crime subject of the investigation.
(C) The defendant had not, at the time the in-custody informant spoke to the defendant, invoked their right to silence or counsel, related to the charges for which the defendant is being investigated, under the Fifth Amendment to the United States Constitution.
(D) All communications between the defendant and the in-custody informant were audio and video recorded, and notice that these recordings exist is provided to the defendant when charges are filed. If audio and video recordings are not feasible, the agent shall be called to testify at the preliminary hearing and trial. This subdivision does not apply to audio-recorded operations under this section that were conducted prior to January 1, 2022.
(E) The defendant is provided a list of all in-custody informant operations in which the undercover officer or agent has participated in that resulted in the filing of charges against another inmate, and any consideration that was offered, promised, or provided.
(F) The defendant’s statements to the undercover officer or person acting at the specific direction of law enforcement are not the product of coercion, intimidation, or threats.
(G) Payment to the agent by law enforcement or an employee or agent of law enforcement was in no way contingent upon the achievement of a specifically desired law enforcement outcome.
(2) Testimony by an in-custody witness regarding observations of a crime or incident occurring within a correctional facility.
(d) Nothing in this section is intended or shall be construed to limit discovery to the defense that is otherwise required or authorized by law.