BILL NUMBER: SB 171	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 31, 2006
	PASSED THE ASSEMBLY  AUGUST 31, 2006
	AMENDED IN ASSEMBLY  AUGUST 21, 2006
	AMENDED IN ASSEMBLY  AUGUST 7, 2006
	AMENDED IN ASSEMBLY  JULY 7, 2005
	AMENDED IN SENATE  MAY 27, 2005
	AMENDED IN SENATE  APRIL 4, 2005

INTRODUCED BY   Senator Alquist
   (Coauthors: Assembly Members Cohn and Dymally)

                        FEBRUARY 9, 2005

   An act to add Section 859.5 to the Penal Code, relating to
criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 171, Alquist  Interrogation: recording.
    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 provide that (1) except as specified, any
custodial interrogation conducted at a place of detention of an
individual suspected of committing or accused of a homicide or a
violent felony, as defined, shall be electronically recorded, as
specified; (2) the interrogating entity shall not destroy or alter
the electronic recording of a custodial interrogation, except as
specified; and (3) if a court finds that a defendant was subjected to
an unlawful custodial interrogation, the court shall, at the request
of the defendant, provide the jury with an instruction, developed by
the Judicial Council, as specified. By imposing these new
requirements on local law enforcement when they are interrogating a
defendant suspected of committing or accused of a homicide or violent
felony, this bill would impose a state-mandated local program upon
local government.
  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.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  It is the intent of the Legislature in enacting this
act to require the creation of an electronic record of an entire
custodial interrogation in order to eliminate disputes in court as to
what actually occurred during the interrogation, thereby improving
prosecution of the guilty while affording protection to the innocent.

  SEC. 2.  Section 859.5 is added to the Penal Code, to read:
   859.5.  (a) (1) Any custodial interrogation of an individual
suspected of committing or accused of a homicide, as defined in
Chapter 1 (commencing with Section 187) of Title 8 of Part 1, or a
violent felony, as defined in subdivision (c) of Section 667.5, shall
be electronically recorded in its entirety. This provision applies
to both adult and juvenile proceedings.
   (2) The requirement for the electronic recordation of a custodial
interrogation pursuant to this section shall not apply if the person
to be interrogated provides an electronically recorded statement
expressing that he or she will speak to the law enforcement officer
or officers only if the interrogation is not electronically recorded.
Where electronic recording of that statement is refused by the
person to be interrogated, then that refusal may be documented in
writing.
   (3) The interrogating entity shall not destroy or alter any
electronic recording made of a custodial interrogation of a defendant
until the time that a defendant's conviction for any offense
relating to the interrogation is final and all direct and habeas
corpus appeals are exhausted or the prosecution of the defendant for
that offense is barred by law. The interrogating entity may make one
or more true, accurate, and complete copies of the electronic
recording in a different format.
   (b) Any law enforcement officer who conducts a custodial
interrogation of an individual described in subdivision (a) shall be
required to make an electronic recording of the interrogation
pursuant to subdivision (a), unless the law enforcement officer can
demonstrate, by a preponderance of the evidence, that the electronic
recording of the custodial interrogation was not feasible for a
specified reason, including, but not limited to, either of the
following:
   (1) Access to equipment required to electronically record an
interrogation could not be obtained during the period of time that
the defendant could be lawfully detained.
   (2) The failure to create an electronic recording of the entire
custodial interrogation was the result of a malfunction of the
recording device and obtaining a replacement device was not feasible.

   (c) If a court finds that a defendant was subjected to a custodial
interrogation in violation of subdivision (a), the court shall, at
the request of the defendant, provide the jury with a instruction to
be developed by the Judicial Council that advises the jury to view
the statements made in that custodial interrogation with caution.
   (d) For the purposes of this section, the following terms have the
following meanings:
   (1) "Custodial interrogation" means express questioning, or its
functional equivalent, that is conducted at a place of detention that
a law enforcement officer should know is reasonably likely to elicit
an incriminating response from the defendant, under circumstances in
which the defendant does not feel free to leave or terminate the
questioning.
   (2) "Electronic recording" means an analog or digital recording
that includes the audio representations of any interrogator and
individual involved in a custodial interrogation, provided however,
that a motion picture, videotape, analog, or digital recording that
includes both audio and visual representations of any interrogator
and individual involved in a custodial interrogation is also
permitted. If videotaping is used, the camera shall be positioned to
capture images of the suspect and the interrogators. Law enforcement
officers are encouraged to videotape the custodial interrogation of
individuals suspected or accused of committing a homicide.
   (3) "Law enforcement officer" means any officer of the police,
sheriff, highway patrol, or district attorney, and any peace officer
included in Chapter 4.5 (commencing with Section 830).
   (4) "Place of detention" means a police station, sheriff's
station, correctional facility, holding facility for prisoners, or
any other law enforcement facility in which a person may be held in
detention in connection with any criminal charge that has been, or
may be, filed against the person. "Place of detention" does not
include a law enforcement vehicle.
  SEC. 3.  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.