BILL NUMBER: SB 569 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 3, 2013
AMENDED IN SENATE MAY 28, 2013
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. murder. 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. 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. 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 custodial interrogations of
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 in a fixed place of
detention, and suspected of committing the offense
murder, as listed in paragraph (1) of 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. If the person being interrogated refuses to record
any statement, the officer shall document that refusal in writing.
(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 the offense listed in
paragraph (1) of subdivision (b) of Section 707 of the Welfare and
Institutions Code murder 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 the offense listed in
paragraph (1) of subdivision (b) of Section 707 of the Welfare and
Institutions Code murder 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 A
person's statements that were not electronically recorded
pursuant to this section 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 video recording of interrogations
by law enforcement officers when a defendant is charged with the
offense listed in paragraph (1) of 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."
(3) If the court finds that a defendant was subject to a custodial
interrogation in violation of subdivision (a), the court shall
provide the jury with an instruction, to be developed by the Judicial
Council, that advises the jury to view with caution the statements
made in that custodial interrogation.
(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) 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 a 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 subdivision (g) 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 the offense described
murder, as listed in paragraph (1) of 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.