Amended in Senate May 31, 2016

Senate Bill No. 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.

LEGISLATIVE COUNSEL’S DIGEST

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:

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 a
leading 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 both adults and
juveniles. Recording interrogations decreases wrongful convictions
based on false confessions and enhances public confidence in the
criminal justice 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 of the Penal Code is amended to read:

859.5.  

(a) Except as otherwise provided in this section, a
custodial interrogation of any person, including begin insert an adult or end insert a minor,
who is in a fixed place of detention, and suspected of committing
murder, as listed in begin delete Sections 187 or 189, end delete begin insert Section 187 or 189 of this
code, end insert or 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 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 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) 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 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)  begin delete “Electronic end delete begin insert (A) end insert begin insert   end insert begin insert For the purposes of the custodial
interrogation of a minor, pursuant to subdivision (a), “electronic end insert
recording” means a video recording that accurately records a
custodial interrogation.

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

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(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.  

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.