Amended in Senate May 31, 2016

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 amended, 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.

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Existing law defines “electronic recording” for these provisions as a video recording that accurately records a custodial interrogation.

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This bill would specify that the above definition applies only to the custodial interrogation of a minor and would expand the definition to include a video or audio recording for the custodial interrogation of an adult.

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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
P3    1subjected to double the trauma: the loss of, or injury occurring to,
2a loved one and the guilt over the conviction of an innocent person.
3Mandating electronic recording of custodial interrogations of both
4adults and juveniles will improve criminal investigation techniques,
5reduce the likelihood of wrongful convictions, and further the
6cause of justice in California.

7(3) Evidence of a defendant’s alleged statement or confession
8is one of the most significant pieces of evidence in any criminal
9trial. Although confessions and admissions are the most accurate
10evidence used to solve countless crimes, they can also lead to
11wrongful convictions. When there is a complete recording of the
12entire interrogation that produced such a statement or confession,
13the factfinder can evaluate its precise contents and any alleged
14coercive influences that may have produced it.

15(b) For these reasons, it is the intent of the Legislature to require
16electronic recording of custodial interrogations of both adults and
17juveniles. Recording interrogations decreases wrongful convictions
18based on false confessions and enhances public confidence in the
19criminal justice process. Properly recorded interrogations provide
20the best evidence of the communications that occurred during an
21interrogation, prevent disputes about how an officer conducted
22himself or herself or treated a suspect during the course of an
23interrogation, prevent a defendant from lying about the account
24of events he or she originally provided to law enforcement, and
25spare judges and jurors the time necessary and the need to assess
26which 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
29custodial interrogation of any person, includingbegin insert an adult orend insert a minor,
30who is in a fixed place of detention, and suspected of committing
31murder, as listed inbegin delete Sections 187 or 189,end deletebegin insert Section 187 or 189 of this
32code,end insert
or paragraph (1) of subdivision (b) of Section 707 of the
33Welfare and Institutions Code, shall be electronically recorded in
34its entirety. A statement that is electronically recorded as required
35pursuant to this section creates a rebuttable presumption that the
36electronically recorded statement was, in fact, given and was
37accurately recorded by the prosecution’s witnesses, provided that
38the electronic recording was made of the custodial interrogation
39in its entirety and the statement is otherwise admissible.

P4    1(b) The requirement for the electronic recordation of a custodial
2interrogation pursuant to this section shall not apply under any of
3the following circumstances:

4(1) Electronic recording is not feasible because of exigent
5circumstances. The exigent circumstances shall be recorded in the
6police report.

7(2) The person to be interrogated states that he or she will speak
8to a law enforcement officer only if the interrogation is not
9electronically recorded. If feasible, that statement shall be
10electronically recorded. The requirement also does not apply if the
11person being interrogated indicates during interrogation that he or
12she will not participate in further interrogation unless electronic
13recording ceases. If the person being interrogated refuses to record
14any statement, the officer shall document that refusal in writing.

15(3) The custodial interrogation took place in another jurisdiction
16and was conducted by law enforcement officers of that jurisdiction
17in compliance with the law of that jurisdiction, unless the
18interrogation was conducted with intent to avoid the requirements
19of this section.

20(4) The interrogation occurs when no law enforcement officer
21conducting the interrogation has knowledge of facts and
22circumstances that would lead an officer to reasonably believe that
23the individual being interrogated may have committed murder for
24which this section requires that a custodial interrogation be
25recorded. If during a custodial interrogation, the individual reveals
26facts and circumstances giving a law enforcement officer
27conducting the interrogation reason to believe that murder has
28 been committed, continued custodial interrogation concerning that
29offense shall be electronically recorded pursuant to this section.

30(5) A law enforcement officer conducting the interrogation or
31the officer’s superior reasonably believes that electronic recording
32would disclose the identity of a confidential informant or jeopardize
33the safety of an officer, the individual being interrogated, or another
34individual. An explanation of the circumstances shall be recorded
35in the police report.

36(6) The failure to create an electronic recording of the entire
37custodial interrogation was the result of a malfunction of the
38recording device, despite reasonable maintenance of the equipment,
39and 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

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) A person’s statements that were not electronically recorded
12pursuant to this section may be admitted into evidence in a criminal
13proceeding or in a juvenile court proceeding, as applicable, if the
14court finds that all of the following apply:

15(1) The statements are admissible under applicable rules of

17(2) The prosecution has proven by clear and convincing evidence
18that the statements were made voluntarily.

19(3) Law enforcement personnel made a contemporaneous audio
20or audio and visual recording of the reason for not making an
21electronic recording of the statements. This provision does not
22apply if it was not feasible for law enforcement personnel to make
23that recording.

24(4) The prosecution has proven by clear and convincing evidence
25that one or more of the circumstances described in subdivision (b)
26existed at the time of the custodial interrogation.

27(e) Unless the court finds that an exception in subdivision (b)
28applies, all of the following remedies shall be granted as relief for

30(1) Failure to comply with any of the requirements of this section
31shall be considered by the court in adjudicating motions to suppress
32a statement of a defendant made during or after a custodial

34(2) Failure to comply with any of the requirements of this section
35shall be admissible in support of claims that a defendant’s statement
36was involuntary or is unreliable, provided the evidence is otherwise

38(3) If the court finds that a defendant was subject to a custodial
39interrogation in violation of subdivision (a), the court shall provide
40the jury with an instruction, to be developed by the Judicial
P6    1Council, that advises the jury to view with caution the statements
2made in that custodial interrogation.

3(f) The interrogating entity shall maintain the original or an
4exact copy of an electronic recording made of a custodial
5interrogation until a conviction for any offense relating to the
6interrogation is final and all direct and habeas corpus appeals are
7exhausted or the prosecution for that offense is barred by law or,
8in a juvenile court proceeding, as otherwise provided in subdivision
9(b) of Section 626.8 of the Welfare and Institutions Code. The
10interrogating entity may make one or more true, accurate, and
11complete copies of the electronic recording in a different format.

12(g) For the purposes of this section, the following terms have
13the following meanings:

14(1) “Custodial interrogation” means any interrogation in a fixed
15place of detention involving a law enforcement officer’s
16questioning that is reasonably likely to elicit incriminating
17responses, and in which a reasonable person in the subject’s
18position would consider himself or herself to be in custody,
19beginning when a person should have been advised of his or her
20constitutional rights, including the right to remain silent, the right
21to have counsel present during any interrogation, and the right to
22have counsel appointed if the person is unable to afford counsel,
23and ending when the questioning has completely finished.

24(2) begin delete“Electronic end deletebegin insert(A)end insertbegin insertend insertbegin insertFor the purposes of the custodial
25interrogation of a minor, pursuant to subdivision (a), “electronic end insert

26recording” means a video recording that accurately records a
27custodial interrogation.

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(B) For the purposes of the custodial interrogation of an adult,
29pursuant to subdivision (a), “electronic recording” means a video
30or audio recording that accurately records a custodial

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32(3) “Fixed place of detention” means a fixed location under the
33control of a law enforcement agency where an individual is held
34in detention in connection with a criminal offense that has been,
35or may be, filed against that person, including a jail, police or
36sheriff’s station, holding cell, correctional or detention facility,
37juvenile hall, or a facility of the Division of Juvenile Facilities.

38(4) “Law enforcement officer” means a person employed by a
39law enforcement agency whose duties include enforcing criminal
P7    1laws or investigating criminal activity, or any other person who is
2acting at the request or direction of that person.


SEC. 3.  

If the Commission on State Mandates determines that
4this act contains costs mandated by the state, reimbursement to
5local agencies and school districts for those costs shall be made
6pursuant to Part 7 (commencing with Section 17500) of Division
74 of Title 2 of the Government Code.