BILL NUMBER: SB 511 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 6, 2007
PASSED THE ASSEMBLY SEPTEMBER 5, 2007
AMENDED IN ASSEMBLY AUGUST 31, 2007
AMENDED IN ASSEMBLY JULY 5, 2007
AMENDED IN SENATE APRIL 9, 2007
INTRODUCED BY Senator Alquist
FEBRUARY 22, 2007
An act to add Section 859.5 to the Penal Code, relating to
interrogation.
LEGISLATIVE COUNSEL'S DIGEST
SB 511, 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 require the electronic recordation of the entire
proceedings of any custodial interrogation of an individual who is in
a fixed place of detention and who, at the time of the
interrogation, is suspected of committing or accused of a homicide or
a violent felony, except as specified. The bill would also prohibit
the interrogating entity from destroying or altering any electronic
recording made of the interrogation until the final conclusion of the
proceedings, as specified. The bill would become operative on July
1, 2008. 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.
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 who
is in a fixed place of detention and who, at the time of
interrogation, is 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 until the time
that 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. 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, 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.
(3) The questions put by law enforcement personnel, and the person'
s responsive statements, were part of a routine processing or booking
of the person.
(4) The law enforcement officers in good faith failed to make an
electronic recording of the custodial interrogation because the
officers inadvertently failed to operate the recording equipment
properly, or without the officer's knowledge the recording equipment
malfunctioned or stopped operating.
(5) The custodial interrogation took place in another jurisdiction
and was conducted by the officers of that jurisdiction in compliance
with the law of that jurisdiction.
(6) The law enforcement officers conducting or contemporaneously
observing the custodial interrogation reasonably believed that the
crime of which the person was suspected was not among those listed in
paragraph (1) of subdivision (a).
(7) Exigent circumstances existed which prevented the making of,
or rendered it not feasible to make, an electronic recording of the
custodial interrogation.
(c) 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 by a law enforcement officer
from the time that the suspect is, or should be, informed of his or
her rights to counsel and to remain silent, until the time that the
questioning ends.
(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. Law enforcement officers are encouraged, if videotaping,
to position the camera to capture facial 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) "Fixed place of detention" means a jail, police, or sheriff's
station, holding cell, or a correctional or detention facility.
(5) A person is "suspected of" committing a homicide or violent
felony, for purposes of this section, if law enforcement officers
have reasonable cause, at the time of the interrogation, to believe
that the person committed a homicide or violent felony.
(d) This section shall become operative on July 1, 2008.
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.