BILL NUMBER: SB 569 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Lieu
FEBRUARY 22, 2013
An act to add Section 859.5 to the Penal Code, and to add Section
626.8 to the Welfare and Institutions Code, relating to
interrogation.
LEGISLATIVE COUNSEL'S DIGEST
SB 569, as introduced, Lieu. Interrogation: electronic
recordation.
Existing law provides that under specified conditions the
statements of witnesses, victims, or perpetrators of specified crimes
may be recorded and preserved by means of videotape.
This bill would require the electronic recordation of the entire
custodial interrogation of a minor who is in a fixed place of
detention, as defined, and who, at the time of the interrogation, is
suspected of committing or accused of committing a specified offense.
The bill would set forth various exceptions from this requirement,
including if the law enforcement officer conducting the interrogation
or his or her superior reasonably believes that electronic recording
would disclose the identity of a confidential informant or
jeopardize the safety of an officer, the individual being
interrogated, or another individual. The bill would require the
prosecution to show by clear and convincing evidence that an
exception applies to justify the failure to make that electronic
recording. The bill would also require the interrogating entity to
maintain the original or an exact copy of an electronic recording
made of the interrogation until the final conclusion of the
proceedings, as specified.
The bill would require the Judicial Council to develop related
jury instructions. The bill would also require the Judicial Council
to develop forms to survey interrogations and outcomes in order to
ensure compliance with these provisions, as specified. The bill would
require the Department of Justice to develop forms to be submitted
to the department in each case of an unrecorded interrogation in
order to identify patterns of noncompliance. The bill would make
these provisions applicable to juvenile court proceedings, as
specified. By imposing these new requirements on local law
enforcement, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares the following:
(1) According to a national study, false confessions extracted
during police questioning of suspects have been identified as the
second most frequent cause of a wrongful conviction. Although threats
and coercion sometimes lead innocent people to confess, even the
most standardized interrogations can result in a false confession or
admission. Mentally ill or mentally disabled persons are particularly
vulnerable, and some confess to crimes because they want to please
authority figures or to protect another person. Additionally,
innocent people may come to believe that they will receive a harsher
sentence, or even the death penalty, unless they confess to the
alleged crime.
(2) Three injustices result from false confessions. First, a false
confession can result in an innocent person being incarcerated.
Second, when an innocent person is incarcerated, the criminal
investigations end and the real perpetrator remains free to commit
similar or potentially worse crimes. Third, victims' families are
subjected to double the trauma: the loss of, or injury occurring to,
a loved one and the guilt over the conviction of an innocent person.
Mandating electronic recording of custodial interrogations of both
adults and juveniles will improve criminal investigation techniques,
reduce the likelihood of wrongful convictions, and further the cause
of justice in California.
(3) Evidence of a defendant's alleged statement or confession is
one of the most significant pieces of evidence in any criminal trial.
Although confessions and admissions are the most accurate evidence
used to solve countless crimes, they can also lead to wrongful
convictions. When there is a complete recording of the entire
interrogation that produced such a statement or confession, the
factfinder can evaluate its precise contents and any alleged coercive
influences that may have produced it.
(b) For these reasons, it is the intent of the Legislature to
require electronic recording of all custodial interrogations of both
adults and juveniles. Recording interrogations decreases wrongful
convictions based on false confessions and enhances public confidence
in the criminal process. Properly recorded interrogations provide
the best evidence of the communications that occurred during an
interrogation, prevent disputes about how an officer conducted
himself or herself or treated a suspect during the course of an
interrogation, prevent a defendant from lying about the account of
events he or she originally provided to law enforcement, and spare
judges and jurors the time necessary and the need to assess which
account of an interrogation to believe.
SEC. 2. Section 859.5 is added to the Penal Code, to read:
859.5. (a) Except as otherwise provided in this section, a
custodial interrogation of a minor, who is suspected of committing an
offense listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, shall be electronically recorded in its entirety.
A statement that is electronically recorded as required pursuant to
this section creates a rebuttable presumption that the electronically
recorded statement was, in fact, given and was accurately recorded
by the prosecution's witnesses, provided that the electronic
recording was made of the custodial interrogation in its entirety and
the statement is otherwise admissible.
(b) The requirement for the electronic recordation of a custodial
interrogation pursuant to this section shall not apply under any of
the following circumstances:
(1) Electronic recording is not feasible because of exigent
circumstances. The exigent circumstances shall be recorded in the
police report.
(2) The person to be interrogated states that he or she will speak
to a law enforcement officer only if the interrogation is not
electronically recorded. If feasible, that statement shall be
electronically recorded. The requirement also does not apply if the
person being interrogated indicates during interrogation that he or
she will not participate in further interrogation unless electronic
recording ceases.
(3) The custodial interrogation took place in another jurisdiction
and was conducted by law enforcement officers of that jurisdiction
in compliance with the law of that jurisdiction, unless the
interrogation was conducted with intent to avoid the requirements of
this section.
(4) The interrogation occurs when no law enforcement officer
conducting the interrogation has knowledge of facts and circumstances
that would lead an officer to reasonably believe that the individual
being interrogated may have committed an offense listed in
subdivision (b) of Section 707 of the Welfare and Institutions Code
for which this section requires that a custodial interrogation be
recorded. If during a custodial interrogation, the individual reveals
facts and circumstances giving a law enforcement officer conducting
the interrogation reason to believe that an offense listed in
subdivision (b) of Section 707 of the Welfare and Institutions Code
has been committed, continued custodial interrogation concerning that
offense shall be electronically recorded pursuant to this section.
(5) A law enforcement officer conducting the interrogation or the
officer's superior reasonably believes that electronic recording
would disclose the identity of a confidential informant or jeopardize
the safety of an officer, the individual being interrogated, or
another individual. An explanation of the circumstances shall be
recorded in the police report.
(6) The failure to create an electronic recording of the entire
custodial interrogation was the result of a malfunction of the
recording device, despite reasonable maintenance of the equipment,
and timely repair or replacement was not feasible.
(7) The questions presented to a person by law enforcement
personnel and the person's responsive statements were part of a
routine processing or booking of that person. Electronic recording is
not required for spontaneous statements made in response to
questions asked during the routine processing of the arrest of the
person.
(c) If the prosecution relies on an exception in subdivision (b)
to justify a failure to make an electronic recording of a custodial
interrogation, the prosecution shall show by clear and convincing
evidence that the exception applies.
(d) The presumption of inadmissibility of statements provided in
this section may be overcome, and a person's statements that were not
electronically recorded may be admitted into evidence in a criminal
proceeding or in a juvenile court proceeding, as applicable, if the
court finds that all of the following apply:
(1) The statements are admissible under applicable rules of
evidence.
(2) The prosecution has proven by clear and convincing evidence
that the statements were made voluntarily.
(3) Law enforcement personnel made a contemporaneous audio or
audio and visual recording of the reason for not making an electronic
recording of the statements. This provision does not apply if it was
not feasible for law enforcement personnel to make that recording.
(4) The prosecution has proven by clear and convincing evidence
that one or more of the circumstances described in subdivision (b)
existed at the time of the custodial interrogation.
(e) Unless the court finds that an exception in subdivision (b)
applies, all of the following remedies shall be granted as relief for
noncompliance:
(1) Failure to comply with any of the requirements of this section
shall be considered by the court in adjudicating motions to suppress
a statement of a defendant made during or after a custodial
interrogation.
(2) Failure to comply with any of the requirements of this section
shall be admissible in support of claims that a defendant's
statement was involuntary or is unreliable, provided the evidence is
otherwise admissible.
(3) If the court admits into evidence a statement made during a
custodial interrogation that was not electronically recorded in
compliance with this section, the court, upon request of the
defendant, shall give to the jury cautionary instructions. The
Judicial Council shall develop jury instructions that are
substantially similar to the following jury instruction:
"The law requires the electronic recording of interrogations by
law enforcement officers when a defendant is charged with an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code. This is done to ensure that you will have before
you a complete picture of the circumstances under which an alleged
statement of a defendant was made in a custodial setting so that you
may determine whether a statement was, in fact, made in that
custodial setting and accurately recorded. If there is a failure to
electronically record an interrogation, you have not been provided
with a complete picture of all the facts surrounding the defendant's
alleged statement and the precise details of that statement. By way
of example, you cannot hear the tone or inflection of the defendant's
and interrogator's voice, or hear first hand the interrogation, both
questions and responses, in its entirety. Instead you have been
presented with a summary based upon the recollections of law
enforcement personnel. Therefore, you should weigh the evidence of
the defendant's alleged statement made in a custodial setting with
great caution and care as you determine whether the statement was, in
fact, made in that custodial setting, and, if so, whether it was
accurately reported by the state's witnesses, and what, if any,
weight it should be given in your deliberations.
You have heard evidence that the defendant made a statement to a
law enforcement officer in a custodial setting and that the statement
was not recorded. You are the exclusive judge as to whether the
defendant made the statement in that custodial setting, and as to
what was actually said.
You must first decide whether the defendant, in fact, made that
statement in a custodial setting, in whole or in part. Among the
factors you may consider in deciding whether the defendant actually
made the alleged statement in a custodial setting is the failure of
law enforcement officials to make an electronic recording of the
interrogation conducted and the alleged statement itself. The fact
that a law enforcement officer did not comply with the law requiring
the electronic recording of the reported statement shall be
considered by you as a circumstance tending to show that the
statement was not made in that custodial setting.
If you find that the defendant did make the statement in that
custodial setting, you must view the statement, as reported, with
caution, because unrecorded oral statements made by a defendant out
of court to a law enforcement officer should be viewed with caution.
The failure of the law enforcement officer to comply with the law
requiring recording of the reported statement shall also be
considered by you as a circumstance bearing on the weight and
credibility to be given to the officer's account of the statement.
The presence of an electronic recording that is recorded in its
entirety permits, but does not compel you to conclude that the
prosecution has proven that a statement was, in fact, given and that
the electronically recorded statement was accurately reported by the
prosecution's witnesses."
(f) The interrogating entity shall maintain the original or an
exact copy of an electronic recording made of a custodial
interrogation until a conviction for any offense relating to the
interrogation is final and all direct and habeas corpus appeals are
exhausted or the prosecution for that offense is barred by law or, in
a juvenile court proceeding, as otherwise provided in subdivision
(b) of Section 626.8 of the Welfare and Institutions Code. The
interrogating entity may make one or more true, accurate, and
complete copies of the electronic recording in a different format.
(g) (1) Compliance with the electronic recording requirement shall
be monitored by the Judicial Council. The Judicial Council shall
develop forms to survey interrogations and outcomes and to identify
any patterns of noncompliance with the requirements of this section.
These forms shall be completed and submitted by the judge and the
prosecutor to the Judicial Council for any of the following cases:
(A) Cases in which recorded interrogations were introduced as
evidence in a criminal proceeding.
(B) Cases in which interrogations were not recorded, but were
nonetheless introduced as evidence in a criminal proceeding.
(C) Cases in which interrogations were recorded and a plea of
guilty to a felony offense was entered and accepted by the court.
(D) Cases in which interrogations were not recorded and a plea of
guilty to a felony offense was entered and accepted by the court.
(2) Compliance with the electronic recording requirement shall
also be monitored by the Department of Justice. The Department of
Justice shall develop forms for purposes of identifying any patterns
of noncompliance. The forms shall describe the charges against the
person, the location where the interrogation took place, and the
exception listed in subdivision (b) that was the primary basis for
the failure to record the interrogation. These forms shall be
completed and submitted to the department by the interrogating
officer or officers in each case of an unrecorded interrogation,
regardless of whether the electronic recording is presumed
inadmissible into evidence under this section, or is in fact
inadmissible under this section.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "Custodial interrogation" means any interrogation in a fixed
place of detention involving a law enforcement officer's questioning
that is reasonably likely to elicit incriminating responses, and in
which a reasonable person in the subject's position would consider
himself or herself to be in custody, beginning when a person should
have been advised of his or her constitutional rights, including the
right to remain silent, the right to have counsel present during any
interrogation, and the right to have counsel appointed if the person
is unable to afford counsel, and ending when the questioning has
completely finished.
(2) "Electronic recording" means an audio or video recording that
accurately records a custodial interrogation.
(3) "Fixed place of detention" means a fixed location under the
control of a law enforcement agency where an individual is held in
detention in connection with a criminal offense that has been, or may
be, filed against that person, including a jail, police or sheriff's
station, holding cell, correctional or detention facility, juvenile
hall, or a facility of the Division of Juvenile Facilities.
(4) "Law enforcement officer" means a person employed by a law
enforcement agency whose duties include enforcing criminal laws or
investigating criminal activity, or any other person who is acting at
the request or direction of that person.
SEC. 3. Section 626.8 is added to the Welfare and Institutions
Code, to read:
626.8. (a) Subdivisions (a) to (d), inclusive, paragraphs (1) and
(2) of subdivision (e), and subdivisions (g) and (h) of Section
859.5 of the Penal Code shall apply to any custodial interrogation of
a person who is or who may be adjudged a ward of the juvenile court
pursuant to Section 602 related to an offense described in
subdivision (b) of Section 707.
(b) (1) Except as otherwise provided in paragraph (2), Article 22
(commencing with Section 825) shall apply to any electronic recording
or other record made pursuant to this section.
(2) The interrogating entity shall maintain an original or exact
copy of any electronic recording made of a custodial interrogation
until the person is no longer subject to the jurisdiction of the
juvenile court, unless the person is transferred to a court of
criminal jurisdiction. If the person is transferred to a court of
criminal jurisdiction, subdivision (f) of Section 859.5 of the Penal
Code shall apply. The interrogating entity may make one or more true,
accurate, and complete copies of the electronic recording in a
different format.
SEC. 4. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.