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

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Date Published: 05/27/2021 09:00 PM

Amended  IN  Assembly  May 27, 2021
Amended  IN  Assembly  April 07, 2021


Assembly Bill
No. 679

Introduced by Assembly Member Friedman
(Principal coauthor: Assembly Member Bauer-Kahan)
(Coauthors: Assembly Members Quirk, Wicks, and Lorena Gonzalez)
(Coauthor: Senator Coauthors: Senators Kamlager and Wiener)

February 12, 2021

An act to repeal and add Section 1111.5 of the Penal Code, relating to criminal procedure.


AB 679, as amended, Friedman. Criminal trials: testimony of in-custody informants.
Existing law prohibits a jury or judge from convicting a defendant, finding a special circumstance true, or using a fact in aggravation based on the uncorroborated testimony of an in-custody informant. Existing law defines “in-custody informant” for these purposes as 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.
Existing law provides that, except as otherwise provided by statute, all relevant evidence is admissible. The California Constitution provides for the Right to Truth-In-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
This bill would instead make testimony by, or information obtained by, an in-custody informant, as defined, regarding statements made by the defendant while the defendant was in custody, inadmissible, as specified. The bill would provide an exemption for such testimony relating to a crime or incident occurring within a correctional facility and testimony obtained pursuant to a law enforcement operation, as described, that meets specified criteria.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


 Section 1111.5 of the Penal Code is repealed.

SEC. 2.

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

 (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.