By: Hayley Graves

Criminal eyewitness identification procedures – say that three times fast – are when a law enforcement officer asks a witness to look at photos or a lineup of individuals to identify a suspect. SB 923 by Senator Scott Wiener (D – San Francisco) requires California law enforcement agencies to use certain scientifically proven eyewitness identification procedures. Currently only four counties in California have such procedures in place. This bill would require every police department in California to use the new the procedures.

First, and most importantly, the criminal justice system works best when the truth is discovered. Without the truth of what happened, prosecutors, defense attorneys, judges, and jurors must make a best guess of the truth. And when they make that guess someone could be wrongly convicted or mistakenly freed. In several of those instances, 12 out of 13 convictions based on false eyewitness testimony have been overturned by DNA evidence in California.

There is no statewide standard in California for eyewitness identification procedures. SB 923 standardizes the steps officers need to take when administering eyewitness identification procedures. Those steps include: (1) the officer does not know the identity of the suspect; (2) the officer gives specific instructions to the eyewitness, including telling the eyewitness to not feel compelled to make an identification; (3) and the officer records the entire process for quality assurance.

SB 923 does not fully adopt every aspect of modern scientific procedures. The bill requires simultaneous displays—meaning six photos or six individuals are in the lineup at a time. Research shows that is not an accurate way of identification. Research has proven that sequential displays are more effective. In a sequential display, the eyewitness is matching their memory to the single photo or person in front of them. In simultaneous, the eyewitness is matching all the other photos or persons against the other photos and persons. Rather than relying on memory, the eyewitness relies on the other photos or individuals to make their selection.

The bill requires the entire identification process to be visually and aurally recorded. The goal of this provision is to make sure all the procedures are followed. However, this provision fails to address sensitive eyewitnesses. A rape victim might feel uncomfortable and unwilling to be recorded as she or he views a live lineup of potential suspects who sexually assaulted him or her. Or a gang member might fear being recorded while informing on a fellow gang member and refuse to assist the police. The bill only allows for video recording not be used if it is not “feasible.” There are no definitions of feasibility. This may lead to litigation over its meaning.

Existing law provides that when a defendant is not afforded a fair trial because an administrator coached an eyewitness into a faulty identification—the defendant’s due process rights have been violated. SB 923 provides that it does not affect the admissibility of evidence at trial. Therefore, if there has been an improper identification procedure, the identification is admissible in trial.

The goal of SB 923 was to create standardized procedures for all of California law enforcement when conducted criminal eyewitness identification procedures. Although SB 923 does not embrace every aspect of scientific eyewitness identification procedures, if the bill is enacted it will likely help reduce eyewitness misidentifications in California.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Hayley Graves is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

 

 

Joint Committees (transcript)

Today’s post is on the work of the Legislature’s joint committees.

The California State Legislature has a number of joint committees that are comprised of members of the Senate and Assembly, and are intended to cover issues of mutual interest between the two houses.

The three main joint committees deal with legislative rules, the state budget, and state audits. Capitol observers should be aware of the work of all three of these joint committees.

The first is the Joint Rules Committee, which actually rarely meets. It consists of members of the Assembly Committee on Rules, the Assembly Majority and Minority Leaders, the Speaker of the Assembly, four members of the Senate Committee on Rules, and other Senators that are appointed by the Senate Rules Committee.

The Joint Rules Committee is required to have an equal number of Assembly Members and Senators. Among its responsibilities are: the relations between the two houses and making recommendations to improve that relationship, changes in the law to cure defects affecting the Legislature, adjustments in legislative procedures governing the processing of proposed legislation, and coordination of the work of the Assembly and the Senate and their committees by eliminating duplication of efforts. In addition, the Joint Rules Committee approves the involvement of the Legislative Counsel in litigation affecting the Legislature.

The next is JLBC – the Joint Legislative Budget Committee. It was established in state statute over 60 years ago, and it employs the Legislative Analyst – whose job it is to provide nonpartisan budget advice to the Legislature. The JLBC has equal representation from both Houses – 8 Assembly Members who are appointed by the Speaker and 8 Senators who are appointed by the Senate Committee on Rules.

The essential function of the JLBC is to make recommendations to both houses concerning the state budget, the revenues and the expenditures of the state, as well as concerning the organization and functions of the state in its departments, its subdivisions, and its agencies. Under the Joint Rules of the Assembly and the Senate, the JLBC is a continuing body.

And the third is JLAC – Joint Legislative Audit Committee. The purpose of JLAC is to have Legislators determine which state or local activities they want reviewed by the state’s Auditor General. JLAC has existed for more than 50 years in state law. Here too there’s an equal number of legislators who sit on JLAC – 7 members of the Assembly who are appointed by the Speaker and 7 members of the Senate who are appointed by the Senate Committee on Rules Committee.

During the session, they meet roughly every other month to review pending audit requests and review and vote on any new audit requests. The results of these audits are made public on the State Auditor’s website, and there’s a subscription service for these reports. The audit reports are also transmitted to the policy committees of both houses of the Legislature.

At the hearings of JLAC legislators present their audit requests and the auditor’s staff provide background and an estimate of the time and cost of the proposed audit. Thereafter public testimony is allowed and JLAC votes whether to request the audit or deny the audit request.

It’s time for another recap of all the news we here at the McGeorge Capital Center for Law & Policy have been thinking about this past week.

 

 

 

CBC News and the Toronto Star

‘I’m getting ripped off’: A look inside Ticketmaster’s price-hiking bag of tricks by Dave Seglins, Rachel Houlihan, Valérie Ouellet, and William Wolfe-Wylie

Jon’s take: I used to go to a lot more concerts than I do now. There’s a number of reasons for that, but one the biggest reasons was that I go sick of seeing the face value for a ticket, getting to checkout, and after service fees essentially paying twice the face value of the ticket. I got sick of giving Ticketmaster my money, and when I do go to concerts now I mostly go to venues like Ace of Spades here in Sacramento that use Eventbrite for ticket sales. Long story short, this article gave me a new crop of reasons to not be a fan of Ticketmaster. And serious props to the journalists at the Toronto Star and CBC News for some excellent investigative journalism.

 

 

 

Orange County Register

California tries to make the world play by our rules by Tom Campbell

Chris’s take: I respect Professor Campbell’s perspective on this pending legislation and so many other issues that he has offered his perspective on over the years. I enjoyed working with him while he was briefly in the State Senate and then as Director of the Department of Finance under Governor Schwarzenegger. He has served as the Dean at Haas School of Business at UC Berkeley and then as Dean of Fowler School of Law at Chapman University. What an amazing public servant.

I am particularly interested in this op-ed because I worked on the legislation that he write about – SB 826 (Jackson), which is pending final action by the Governor prior to September 30. And I agree with Professor Campbell about his point that California might try to impose its societal views on the rest of the country if it can impose requirements on out-of-state incorporated businesses. Why couldn’t California impose its labor laws or tax laws on foreign corporations, for example?

 

 

 

The Hill

Trump attacks on Session may point to his departure by Olivia Beavers and Jacqueline Thomsen

Molly’s take: ‘Another one bites the dust’ is the song that comes to mind when I check off all of the officials that President Trump has either fired, forced to resign, or had unexpectedly quit. It seems that Attorney General Sessions may be safe until after the midterm elections, but after that, one can only guess.

Trump stated that he doesn’t “have an attorney general.”

Well it seems to me that President Trump will be uprooting another position in the Executive Branch, and everyone on the Hill is expecting it. The question is when.

HuffPost

California’s Largest Wildfire Has Finally Been Contained by Antonia Blumberg

Molly’s take: After a fire-filled year, the U.S. Forest Service says the largest wildfire on record in California is 100 percent contained.  All I can say, is ‘Thank You’ to the hardworking firefighters who are tirelessly working on putting out the fire. Over 720 square miles have been burned since July when the fire began.

As someone who has seen their previous homes burned by fires, this article hit me particularly hard. Memories of cutting grass around the family home and seeing scorch marks across the side of the garage were brought back. This year, my family was lucky, our home was not at risk. The same cannot be said for hundreds of families across California, including classmates and friends here at McGeorge, who lost their homes.

As we continue into the colder season, hopefully, we will stop smelling smoke and ash and prepare for another fire season next year.

On today’s episode of The The CAP·impact Podcast, we talk with Lexi Howard (JD ’15) and Erinn Ryberg (JD ’13) – two McGeorge alumna – who worked to kill AB 638, a bill that would have outlawed immigration consultants in California.

We go over what immigration consultants do, where they fit in the immigration law ecosystem, the actual problem that AB 638 was trying to fix, and why ultimately the bill needed to be killed.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes, Apple Podcasts, or Stitcher Radio, and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Another week has gone by, and Governor Brown has worked his way through more bills that were sent to his desk in the flurry of activity that came at the end of session. I’ve also added in a few more bills to this list, updating it with bills that have been discussed on In Session, and a bill we’ll be talking about on tomorrow’s episode of The CAP⋅impact Podcast.

Assembly Bills

  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Enrolled, awaiting final action from the Governor
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Enrolled, awaiting final action from the Governor

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 822: Net Neutrality – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – Enrolled, awaiting final action from the Governor
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

For those of you keeping score at home, that leaves us with an updated count of 1 bill signed into law, 6 dead before reaching the Governor, and 8 waiting for Governor Brown to either sign, veto, or pocket sign them.

By: Katie Young

The 2017 California wildfires were some of the largest and most destructive on record. The Tubbs fire in Sonoma burned 5,643 structures and was responsible for twenty–two deaths. The Thomas fire in Ventura and Santa Barbara counties burned 281,893 acres and was the largest in California’s history until this summer’s Mendocino Complex fires overtook it at 459,102 acres. This destruction is occurring despite California’s investment of hundreds of millions of dollars in fire suppression over the last five years.

Assembly Members Jim Wood (D – Healdsberg) and Jim Patterson (R – Fresno) proposed AB 2551 as a response to these fires. The bill addresses one of underlying problems leading to California’s wildfire epidemic – forest health. Scientists and policy makers are realizing that the policy of the total suppression of fire in California has contributed to the conditions necessary for the recent trend of huge catastrophic wildfires. California forests burn regularly as part of the ecosystem’s natural function. The suppression of natural wildfire and other poor forest management decisions has led to densely packed forests with unhealthy trees that are less resilient to drought, climate change, pests, and fire.

In its original form, the bill served the dual purpose of promoting more “prescribed fire” through cooperative agreements between CalFire and private landowners and by creating a new Forest and Wildland Health Improvement and Fire Prevention Program. The latter program was intended to promote forest and wildland health, restoration, and resilience as well as improve fire outcomes, prevention, and preparedness throughout the state.  The latest amended version of the bill eliminated the program focused on forest health, likely due to budget concerns, and AB 2551 now focuses solely on making it slightly easier for landowners to work with CalFire to bring low intensity fire back on to their land, and hopefully reduce the risk of catastrophic wildfires in the future.

AB 2551 is supported by a variety of groups including: environmental organizations such as the Nature Conservancy and Defenders of Wildlife, land trusts and conservation districts, state parks, local business interests, and insurance organizations. There are no groups opposing this bill.

AB 2551 has been enrolled and was presented to the Governor on September 10th, 2018.

To learn more about SB 822, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Katie Young is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

 

 

 

Today’s post is on types of legislative committees.

In both the California State Assembly as well as the California State Senate, there are several types of committees that operate to conduct the business of the two houses of the California Legislature.

Committee information is available online for the Assembly at assembly.ca.gov, and for Senate at senate.ca.gov. These websites include the committee members, the staff, the address, the phone number, when and where they meet, their policy committee jurisdictions, etc.

In terms of the standing committees, there are 32 in the Assembly and 21 in the Senate. These committees are created pursuant to the Assembly Rules for Assembly committees – obviously – and the Senate Rules for the Senate committees.

The standing committees consider legislation, the state budget, internal legislative matters, and all of these are determined by the jurisdictions that’s set forth in those rules. Again, the two rules committees, the Assembly Rules Committee and the Senate Rules Committee, determines the jurisdictions and the composition of those committees.

The standing committees have to meet specific standards for providing notice, bill analyses, the quorums, the method of voting, etc. Note that both the Assembly and the Senate have select committees, which are technically subcommittees of each house’s respective general research committee.

Now, pursuant to two joint rules, that’s 36.5 and 36.7, there are a number of joint committees of the Legislature. Note that joint committees have membership from both houses and consider issues of joint concern. A number of these committees were actually established pursuant to state statute or resolution that were adopted by the two houses.

Here’s what folks at the Capital Center for Law & Policy have been reading and thinking about this week. You can also hear an interview featuring McGeorge Professor, and Capital Lawyering Concentration Director, Dan Croxall on Capital Public Radio’s Insight with Beth Ruyak.

 

 

 

Leslie Gielow Jacobs

This is an interesting article about how human policy decisions outside the realm of greenhouse gas emissions exacerbate the effects of climate change.  This author studied recent home building trends and noticed that homes were placed in the likely paths of hurricanes, which will be more frequent and severe with climate change.  The research shows that development decisions should be made with the growing threats posed by climate change in mind.

New York Times

Opinion: This Map Show How the Carolinas Became More Vulnerable to Hurricanes by Stephen M. Strader (Stephen M. Strader is an assistant professor in Villanova University’s geography and environment department)

 

 

 

Jon Wainwright

This story started about two months ago with some excellent reporting by Matt Pearce, Richard Winton and David Montero about how MGM sued the survivors of the Las Vegas shooting last October. MGM “Sued survivors to claim immunity under a federal law passed in the wake of Sept. 11 that was designed to protect corporations from lawsuits after terrorist attacks. Experts said it was the first time such a lawsuit had ever been filed under the law.” The update to the story is that MGM is telling survivors that if they waive their legal notice that MGM will make a $500 donation in the survivors name to a charity that supports survivors or families of slain victims. It’s like the old saying goes: You can put lipstick on a pig, but it’s still a pig.

Associated Press (published in the Chicago Tribune)

MGM offers $500 donation to charity for each shooting survivor who waives notice of lawsuit by Regina Garcia Cano

 

On today’s episode of The CAP·impact Podcast, I sit down with McGeorge adjunct professor, and very good friend of the podcast, Chris Micheli, to talk about recent California Supreme Court decision in Dynamex Operations West, Inc. v Superior Court.

For those unfamiliar with the case, it, in essence, drastically changed how independent contractors are classified in California. Chris and I talk about what the old rules were, how the Dynamex decision will effect employers in the traditional economy space – as well as the new gig economy – and what we can reasonably expect to see the Legislature do in the upcoming year to address some of the issues raised by the business community by Dynamex.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Now that the California Legislature’s two-year legislative session has come to a close the drama around the bills that have worked their way through the legislative process has switched gears from “Will it pass?” to “Will the governor sign it?”. While we’re not completely through the period of time that the Governor has to sign or veto legislation, I thought it would be fun to take a look at how some of the bills we’ve followed here on CAP·impact – either on the blog or on The CAP·impact Podcast – have fared so far. Below is a list of some of the bills we’ve tracked with what their status is – alive, dead, or waiting for action by the Governor.

Assembly Bills

  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Enrolled, awaiting final action from the Governor
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – Enrolled, awaiting final action from the Governor
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

So at this point one of the bills we looked at this year has become law, six have passed both houses of the California Legislature and are waiting to be acted on by Governor Brown, and 4 are dead.