Amended in Assembly September 3, 2013

Amended in Senate May 28, 2013

Senate BillNo. 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 committingbegin delete a specified offense.end deletebegin insert murder.end insert 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 thebegin delete Judicial Council to develop related jury instructions.end deletebegin insert court to provide jury instructions to be developed by the Judicial Council if the court finds that a defendant was subjected to a custodial interrogation in violation of the above-mentioned provisions.end insert 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:

P2    1

SECTION 1.  

(a) The Legislature finds and declares the
2following:

3(1) According to a national study, false confessions extracted
4during police questioning of suspects have been identified as the
5second most frequent cause of a wrongful conviction. Although
6threats and coercion sometimes lead innocent people to confess,
7even the most standardized interrogations can result in a false
8confession or admission. Mentally ill or mentally disabled persons
9are particularly vulnerable, and some confess to crimes because
10they want to please authority figures or to protect another person.
11Additionally, innocent people may come to believe that they will
12receive a harsher sentence, or even the death penalty, unless they
13confess to the alleged crime.

14(2) Three injustices result from false confessions. First, a false
15confession can result in an innocent person being incarcerated.
16Second, when an innocent person is incarcerated, the criminal
17investigations end and the real perpetrator remains free to commit
18similar or potentially worse crimes. Third, victims’ families are
19subjected to double the trauma: the loss of, or injury occurring to,
20a loved one and the guilt over the conviction of an innocent person.
21Mandating electronic recording of custodial interrogations of both
P3    1adults and juveniles will improve criminal investigation techniques,
2reduce the likelihood of wrongful convictions, and further the
3cause of justice in California.

4(3) Evidence of a defendant’s alleged statement or confession
5is one of the most significant pieces of evidence in any criminal
6trial. Although confessions and admissions are the most accurate
7evidence used to solve countless crimes, they can also lead to
8wrongful convictions. When there is a complete recording of the
9entire interrogation that produced such a statement or confession,
10the factfinder can evaluate its precise contents and any alleged
11coercive influences that may have produced it.

12(b) For these reasons, it is the intent of the Legislature to require
13electronic recording of custodial interrogations of juveniles.
14Recording interrogations decreases wrongful convictions based
15on false confessions and enhances public confidence in the criminal
16process. Properly recorded interrogations provide the best evidence
17of the communications that occurred during an interrogation,
18prevent disputes about how an officer conducted himself or herself
19or treated a suspect during the course of an interrogation, prevent
20a defendant from lying about the account of events he or she
21originally provided to law enforcement, and spare judges and jurors
22the time necessary and the need to assess which account of an
23interrogation to believe.

24

SEC. 2.  

Section 859.5 is added to the Penal Code, to read:

25

859.5.  

(a) Except as otherwise provided in this section, a
26custodial interrogation of a minor, who is in a fixed place of
27detention, and suspected of committingbegin delete the offenseend deletebegin insert murder, asend insert
28 listed in paragraph (1) of subdivision (b) of Section 707 of the
29Welfare and Institutions Code, shall be electronically recorded in
30its entirety. A statement that is electronically recorded as required
31pursuant to this section creates a rebuttable presumption that the
32electronically recorded statement was, in fact, given and was
33accurately recorded by the prosecution’s witnesses, provided that
34the electronic recording was made of the custodial interrogation
35in its entirety and the statement is otherwise admissible.

36(b) The requirement for the electronic recordation of a custodial
37interrogation pursuant to this section shall not apply under any of
38the following circumstances:

P4    1(1) Electronic recording is not feasible because of exigent
2circumstances. The exigent circumstances shall be recorded in the
3police report.

4(2) The person to be interrogated states that he or she will speak
5to a law enforcement officer only if the interrogation is not
6electronically recorded. If feasible, that statement shall be
7electronically recorded. The requirement also does not apply if the
8person being interrogated indicates during interrogation that he or
9she will not participate in further interrogation unless electronic
10recording ceases. If the person being interrogated refuses to record
11any statement, the officer shall document that refusal in writing.

12(3) The custodial interrogation took place in another jurisdiction
13and was conducted by law enforcement officers of that jurisdiction
14in compliance with the law of that jurisdiction, unless the
15interrogation was conducted with intent to avoid the requirements
16of this section.

17(4) The interrogation occurs when no law enforcement officer
18conducting the interrogation has knowledge of facts and
19circumstances that would lead an officer to reasonably believe that
20the individual being interrogated may have committedbegin delete the offense
21listed in paragraph (1) of subdivision (b) of Section 707 of the
22Welfare and Institutions Codeend delete
begin insert murderend insert for which this section
23requires that a custodial interrogation be recorded. If during a
24custodial interrogation, the individual reveals facts and
25circumstances giving a law enforcement officer conducting the
26interrogation reason to believe thatbegin delete the offense listed in paragraph
27(1) of subdivision (b) of Section 707 of the Welfare and Institutions
28Codeend delete
begin insert murderend insert has been committed, continued custodial interrogation
29concerning that offense shall be electronically recorded pursuant
30to this section.

31(5) A law enforcement officer conducting the interrogation or
32the officer’s superior reasonably believes that electronic recording
33would disclose the identity of a confidential informant or jeopardize
34the safety of an officer, the individual being interrogated, or another
35individual. An explanation of the circumstances shall be recorded
36in the police report.

37(6) The failure to create an electronic recording of the entire
38custodial interrogation was the result of a malfunction of the
39recording device, despite reasonable maintenance of the equipment,
40and timely repair or replacement was not feasible.

P5    1(7) The questions presented to a person by law enforcement
2personnel and the person’s responsive statements were part of a
3routine processing or booking of that person. Electronic recording
4is not required for spontaneous statements made in response to
5questions asked during the routine processing of the arrest of the
6person.

7(c) If the prosecution relies on an exception in subdivision (b)
8to justify a failure to make an electronic recording of a custodial
9interrogation, the prosecution shall show by clear and convincing
10evidence that the exception applies.

11(d) begin deleteThe presumption of inadmissibility of statements provided
12in this section may be overcome, and a end delete
begin insertA end insertperson’s statements that
13were not electronically recordedbegin insert pursuant to this sectionend insert may be
14admitted into evidence in a criminal proceeding or in a juvenile
15court proceeding, as applicable, if the court finds that all of the
16following apply:

17(1) The statements are admissible under applicable rules of
18evidence.

19(2) The prosecution has proven by clear and convincing evidence
20that the statements were made voluntarily.

21(3) Law enforcement personnel made a contemporaneous audio
22or audio and visual recording of the reason for not making an
23electronic recording of the statements. This provision does not
24apply if it was not feasible for law enforcement personnel to make
25that recording.

26(4) The prosecution has proven by clear and convincing evidence
27that one or more of the circumstances described in subdivision (b)
28existed at the time of the custodial interrogation.

29(e) Unless the court finds that an exception in subdivision (b)
30applies, all of the following remedies shall be granted as relief for
31noncompliance:

32(1) Failure to comply with any of the requirements of this section
33shall be considered by the court in adjudicating motions to suppress
34a statement of a defendant made during or after a custodial
35interrogation.

36(2) Failure to comply with any of the requirements of this section
37shall be admissible in support of claims that a defendant’s statement
38was involuntary or is unreliable, provided the evidence is otherwise
39admissible.

begin delete

P6    1(3) If the court admits into evidence a statement made during a
2custodial interrogation that was not electronically recorded in
3compliance with this section, the court, upon request of the
4defendant, shall give to the jury cautionary instructions. The
5Judicial Council shall develop jury instructions that are
6substantially similar to the following jury instruction:

7

8“The law requires the electronic video recording of interrogations
9by law enforcement officers when a defendant is charged with the
10offense listed in paragraph (1) of subdivision (b) of Section 707
11of the Welfare and Institutions Code. This is done to ensure that
12you will have before you a complete picture of the circumstances
13under which an alleged statement of a defendant was made in a
14custodial setting so that you may determine whether a statement
15was, in fact, made in that custodial setting and accurately recorded.
16If there is a failure to electronically record an interrogation, you
17have not been provided with a complete picture of all the facts
18surrounding the defendant’s alleged statement and the precise
19details of that statement. By way of example, you cannot hear the
20tone or inflection of the defendant’s and interrogator’s voice, or
21hear first hand the interrogation, both questions and responses, in
22its entirety. Instead you have been presented with a summary based
23upon the recollections of law enforcement personnel. Therefore,
24you should weigh the evidence of the defendant’s alleged statement
25made in a custodial setting with great caution and care as you
26determine whether the statement was, in fact, made in that custodial
27setting, and, if so, whether it was accurately reported by the state’s
28witnesses, and what, if any, weight it should be given in your
29deliberations.

30You have heard evidence that the defendant made a statement
31to a law enforcement officer in a custodial setting and that the
32statement was not recorded. You are the exclusive judge as to
33whether the defendant made the statement in that custodial setting,
34and as to what was actually said.

35You must first decide whether the defendant, in fact, made that
36statement in a custodial setting, in whole or in part. Among the
37factors you may consider in deciding whether the defendant
38actually made the alleged statement in a custodial setting is the
39failure of law enforcement officials to make an electronic recording
40of the interrogation conducted and the alleged statement itself. The
P7    1fact that a law enforcement officer did not comply with the law
2requiring the electronic recording of the reported statement shall
3be considered by you as a circumstance tending to show that the
4statement was not made in that custodial setting.

5If you find that the defendant did make the statement in that
6custodial setting, you must view the statement, as reported, with
7caution, because unrecorded oral statements made by a defendant
8out of court to a law enforcement officer should be viewed with
9caution. The failure of the law enforcement officer to comply with
10the law requiring recording of the reported statement shall also be
11considered by you as a circumstance bearing on the weight and
12credibility to be given to the officer’s account of the statement.

13The presence of an electronic recording that is recorded in its
14entirety permits, but does not compel you to conclude that the
15prosecution has proven that a statement was, in fact, given and
16that the electronically recorded statement was accurately reported
17by the prosecution’s witnesses.”
18

end delete
begin insert

19(3) If the court finds that a defendant was subject to a custodial
20interrogation in violation of subdivision (a), the court shall provide
21the jury with an instruction, to be developed by the Judicial
22Council, that advises the jury to view with caution the statements
23made in that custodial interrogation.

end insert

24(f) The interrogating entity shall maintain the original or an
25exact copy of an electronic recording made of a custodial
26interrogation until a conviction for any offense relating to the
27interrogation is final and all direct and habeas corpus appeals are
28exhausted or the prosecution for that offense is barred by law or,
29in a juvenile court proceeding, as otherwise provided in subdivision
30(b) of Section 626.8 of the Welfare and Institutions Code. The
31interrogating entity may make one or more true, accurate, and
32complete copies of the electronic recording in a different format.

33(g) For the purposes of this section, the following terms have
34the following meanings:

35(1) “Custodial interrogation” means any interrogation in a fixed
36place of detention involving a law enforcement officer’s
37questioning that is reasonably likely to elicit incriminating
38responses, and in which a reasonable person in the subject’s
39position would consider himself or herself to be in custody,
40beginning when a person should have been advised of his or her
P8    1constitutional rights, including the right to remain silent, the right
2to have counsel present during any interrogation, and the right to
3have counsel appointed if the person is unable to afford counsel,
4and ending when the questioning has completely finished.

5(2) “Electronic recording” means a video recording that
6accurately records a custodial interrogation.

7(3) “Fixed place of detention” means a fixed location under the
8control of a law enforcement agency where an individual is held
9in detention in connection with a criminal offense that has been,
10or may be, filed against that person, including a jail, police or
11sheriff’s station, holding cell, correctional or detention facility,
12juvenile hall, or a facility of the Division of Juvenile Facilities.

13(4) “Law enforcement officer” means a person employed by a
14law enforcement agency whose duties include enforcing criminal
15laws or investigating criminal activity, or any other person who is
16acting at the request or direction of that person.

17

SEC. 3.  

Section 626.8 is added to the Welfare and Institutions
18Code
, to read:

19

626.8.  

(a) Subdivisions (a) to (d), inclusive, paragraphs (1)
20and (2) of subdivision (e) and subdivision (g) of Section 859.5 of
21the Penal Code shall apply to any custodial interrogation of a
22person who is or who may be adjudged a ward of the juvenile court
23pursuant to Section 602 related tobegin delete the offense describedend deletebegin insert murder,
24as listedend insert
in paragraph (1) of subdivision (b) of Section 707.

25(b) (1) Except as otherwise provided in paragraph (2), Article
2622 (commencing with Section 825) shall apply to any electronic
27recording or other record made pursuant to this section.

28(2) The interrogating entity shall maintain an original or exact
29copy of any electronic recording made of a custodial interrogation
30 until the person is no longer subject to the jurisdiction of the
31juvenile court, unless the person is transferred to a court of criminal
32jurisdiction. If the person is transferred to a court of criminal
33jurisdiction, subdivision (f) of Section 859.5 of the Penal Code
34shall apply. The interrogating entity may make one or more true,
35accurate, and complete copies of the electronic recording in a
36different format.

37

SEC. 4.  

If the Commission on State Mandates determines that
38this act contains costs mandated by the state, reimbursement to
39local agencies and school districts for those costs shall be made
P9    1pursuant to Part 7 (commencing with Section 17500) of Division
24 of Title 2 of the Government Code.



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