Amended in Senate May 28, 2013

Senate Bill No. 569

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 amended, 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. begin delete 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. end delete 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 begin delete all end delete custodial interrogations of begin delete both adults
and end delete 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 begin insert in a fixed place of
detention, and end insert suspected of committing begin delete an end delete begin insert the end insert offense listed in
begin insert paragraph (1) of end insert 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. begin insert If the person being interrogated refuses to record
any statement, the officer shall document that refusal in writing. end insert

(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 begin delete an end delete begin insert the end insert
offense listed in begin insert paragraph (1) of end insert 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 begin delete an end delete begin insert the end insert offense listed in begin insert paragraph (1) of end insert 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 begin insert video end insert recording of interrogations
by law enforcement officers when a defendant is charged with begin delete an end delete
begin insert the end insert offense listed in begin insert paragraph (1) of end insert 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.

begin delete

(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)

end delete

begin insert (g) end insert  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 begin delete an audio or end delete begin insert a end insert 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) begin delete , end delete and begin delete subdivisions end delete begin insert subdivision end insert (g) begin delete and
(h) end delete 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 begin delete an end delete begin insert the end insert
offense described in begin insert paragraph (1) of end insert 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.