Senate BillNo. 1389

Introduced by Senators Glazer and Hernandez

(Coauthor: Senator Hancock)

(Coauthor: Assembly Member Weber)

February 19, 2016

An act to amend Section 859.5 of the Penal Code, relating to interrogation.


SB 1389, as introduced, Glazer. Interrogation: electronic recordation.

Existing law requires the electronic recording 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 murder. Existing law sets 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. Existing law requires the prosecution to show by clear and convincing evidence that an exception applies to justify the failure to make that electronic recording. Existing law requires 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. Existing law additionally requires the court to provide jury instructions 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.

This bill would expand these provisions to apply to any person suspected of committing murder, instead of just minors. By imposing 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


(a) The Legislature finds and declares the

3(1) According to a national study, false confessions extracted
4during police questioning of suspects have been identified as a
5leading cause of a wrongful conviction. Although threats and
6coercion sometimes lead innocent people to confess, even the most
7standardized interrogations can result in a false confession or
8admission. Mentally ill or mentally disabled persons are
9particularly vulnerable, and some confess to crimes because they
10want 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
22adults and juveniles will improve criminal investigation techniques,
23reduce the likelihood of wrongful convictions, and further the
24cause of justice in California.

25(3) Evidence of a defendant’s alleged statement or confession
26is one of the most significant pieces of evidence in any criminal
P3    1trial. Although confessions and admissions are the most accurate
2evidence used to solve countless crimes, they can also lead to
3wrongful convictions. When there is a complete recording of the
4entire interrogation that produced such a statement or confession,
5the factfinder can evaluate its precise contents and any alleged
6coercive influences that may have produced it.

7(b) For these reasons, it is the intent of the Legislature to require
8electronic recording of custodial interrogations of both adults and
9juveniles. Recording interrogations decreases wrongful convictions
10based on false confessions and enhances public confidence in the
11criminal justice process. Properly recorded interrogations provide
12the best evidence of the communications that occurred during an
13interrogation, prevent disputes about how an officer conducted
14himself or herself or treated a suspect during the course of an
15interrogation, prevent a defendant from lying about the account
16of events he or she originally provided to law enforcement, and
17spare judges and jurors the time necessary and the need to assess
18which account of an interrogation to believe.


SEC. 2.  

Section 859.5 of the Penal Code is amended to read:



(a) Except as otherwise provided in this section, a
21custodial interrogation ofbegin insert any person, includingend insert a minor, who is
22in a fixed place of detention, and suspected of committing murder,
23as listed inbegin insert Sections 187 or 189, orend insert paragraph (1) of subdivision
24(b) of Section 707 of the Welfare and Institutions Code, shall be
25electronically recorded in its entirety. A statement that is
26electronically recorded as required pursuant to this section creates
27a rebuttable presumption that the electronically recorded statement
28was, in fact, given and was accurately recorded by the prosecution’s
29witnesses, provided that the electronic recording was made of the
30custodial interrogation in its entirety and the statement is otherwise

32(b) The requirement for the electronic recordation of a custodial
33interrogation pursuant to this section shall not apply under any of
34the following circumstances:

35(1) Electronic recording is not feasible because of exigent
36circumstances. The exigent circumstances shall be recorded in the
37police report.

38(2) The person to be interrogated states that he or she will speak
39to a law enforcement officer only if the interrogation is not
40electronically recorded. If feasible, that statement shall be
P4    1electronically recorded. The requirement also does not apply if the
2person being interrogated indicates during interrogation that he or
3she will not participate in further interrogation unless electronic
4recording ceases. If the person being interrogated refuses to record
5any statement, the officer shall document that refusal in writing.

6(3) The custodial interrogation took place in another jurisdiction
7and was conducted by law enforcement officers of that jurisdiction
8in compliance with the law of that jurisdiction, unless the
9interrogation was conducted with intent to avoid the requirements
10of this section.

11(4) The interrogation occurs when no law enforcement officer
12conducting the interrogation has knowledge of facts and
13circumstances that would lead an officer to reasonably believe that
14the individual being interrogated may have committed murder for
15which this section requires that a custodial interrogation be
16recorded. If during a custodial interrogation, the individual reveals
17facts and circumstances giving a law enforcement officer
18conducting the interrogation reason to believe that murder has
19 been committed, continued custodial interrogation concerning that
20offense shall be electronically recorded pursuant to this section.

21(5) A law enforcement officer conducting the interrogation or
22the officer’s superior reasonably believes that electronic recording
23would disclose the identity of a confidential informant or jeopardize
24the safety of an officer, the individual being interrogated, or another
25individual. An explanation of the circumstances shall be recorded
26in the police report.

27(6) The failure to create an electronic recording of the entire
28custodial interrogation was the result of a malfunction of the
29recording device, despite reasonable maintenance of the equipment,
30and timely repair or replacement was not feasible.

31(7) The questions presented to a person by law enforcement
32personnel and the person’s responsive statements were part of a
33routine processing or booking of that person. Electronic recording
34is not required for spontaneous statements made in response to
35questions asked during the routine processing of the arrest of the

37(c) If the prosecution relies on an exception in subdivision (b)
38to justify a failure to make an electronic recording of a custodial
39interrogation, the prosecution shall show by clear and convincing
40evidence that the exception applies.

P5    1(d) A person’s statements that were not electronically recorded
2pursuant to this section may be admitted into evidence in a criminal
3proceeding or in a juvenile court proceeding, as applicable, if the
4court finds that all of the following apply:

5(1) The statements are admissible under applicable rules of

7(2) The prosecution has proven by clear and convincing evidence
8that the statements were made voluntarily.

9(3) Law enforcement personnel made a contemporaneous audio
10or audio and visual recording of the reason for not making an
11electronic recording of the statements. This provision does not
12apply if it was not feasible for law enforcement personnel to make
13that recording.

14(4) The prosecution has proven by clear and convincing evidence
15that one or more of the circumstances described in subdivision (b)
16existed at the time of the custodial interrogation.

17(e) Unless the court finds that an exception in subdivision (b)
18applies, all of the following remedies shall be granted as relief for

20(1) Failure to comply with any of the requirements of this section
21shall be considered by the court in adjudicating motions to suppress
22a statement of a defendant made during or after a custodial

24(2) Failure to comply with any of the requirements of this section
25shall be admissible in support of claims that a defendant’s statement
26was involuntary or is unreliable, provided the evidence is otherwise

28(3) If the court finds that a defendant was subject to a custodial
29interrogation in violation of subdivision (a), the court shall provide
30the jury with an instruction, to be developed by the Judicial
31Council, that advises the jury to view with caution the statements
32made in that custodial interrogation.

33(f) The interrogating entity shall maintain the original or an
34exact copy of an electronic recording made of a custodial
35interrogation until a conviction for any offense relating to the
36interrogation is final and all direct and habeas corpus appeals are
37exhausted or the prosecution for that offense is barred by law or,
38in a juvenile court proceeding, as otherwise provided in subdivision
39(b) of Section 626.8 of the Welfare and Institutions Code. The
P6    1interrogating entity may make one or more true, accurate, and
2complete copies of the electronic recording in a different format.

3(g) For the purposes of this section, the following terms have
4the following meanings:

5(1) “Custodial interrogation” means any interrogation in a fixed
6place of detention involving a law enforcement officer’s
7questioning that is reasonably likely to elicit incriminating
8responses, and in which a reasonable person in the subject’s
9position would consider himself or herself to be in custody,
10beginning when a person should have been advised of his or her
11constitutional rights, including the right to remain silent, the right
12to have counsel present during any interrogation, and the right to
13have counsel appointed if the person is unable to afford counsel,
14and ending when the questioning has completely finished.

15(2) “Electronic recording” means a video recording that
16accurately records a custodial interrogation.

17(3) “Fixed place of detention” means a fixed location under the
18control of a law enforcement agency where an individual is held
19in detention in connection with a criminal offense that has been,
20or may be, filed against that person, including a jail, police or
21sheriff’s station, holding cell, correctional or detention facility,
22juvenile hall, or a facility of the Division of Juvenile Facilities.

23(4) “Law enforcement officer” means a person employed by a
24law enforcement agency whose duties include enforcing criminal
25laws or investigating criminal activity, or any other person who is
26acting at the request or direction of that person.


SEC. 3.  

If the Commission on State Mandates determines that
28this act contains costs mandated by the state, reimbursement to
29local agencies and school districts for those costs shall be made
30pursuant to Part 7 (commencing with Section 17500) of Division
314 of Title 2 of the Government Code.