Amended in Assembly August 15, 2016

Amended in Senate May 31, 2016

Senate BillNo. 1389


Introduced by Senators Glazer and Hernandez

begin delete

(Coauthor: Senator Hancock)

end delete
begin insert

(Coauthors: Senators Anderson, Hancock, Leno, and Stone)

end insert

(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 wouldbegin delete expand these provisions to apply toend deletebegin insert make this electronic recording requirement applicable to the custodial interrogation ofend insert any person suspected of committingbegin delete murder, instead of just minors.end deletebegin insert murder.end insert By imposing new requirements on local law enforcement, this bill would impose a state-mandated local program.begin insert The bill would exempt from the electronic recording requirement the interrogation of a person who is in custody on a charge of murder if the interrogation is not related to the commission of murder, as specified.end insert

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

This bill would specify that the above definition applies only to the custodial interrogation of abegin delete minor andend deletebegin insert minor. The billend insert would expand the definition to include a video or audio recordingbegin delete forend deletebegin insert in the case ofend insert the custodial interrogation of anbegin delete adult.end deletebegin insert adult and would express the Legislature’s encouragement that law enforcement agencies use video recording when available.end insert

begin insert

This bill would make technical, nonsubstantive changes to the above provisions.

end insert

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 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
P3    1admission. Mentally ill or mentally disabled persons are
2particularly vulnerable, and some confess to crimes because they
3want to please authority figures or to protect another person.
4Additionally, innocent people may come to believe that they will
5receive a harsher sentence, or even the death penalty, unless they
6confess to the alleged crime.

7(2) Three injustices result from false confessions. First, a false
8confession can result in an innocent person being incarcerated.
9Second, when an innocent person is incarcerated, the criminal
10investigations end and the real perpetrator remains free to commit
11similar or potentially worse crimes. Third, victims’ families are
12subjected to double the trauma: the loss of, or injury occurring to,
13a loved one and the guilt over the conviction of an innocent person.
14Mandating electronic recording of custodial interrogations of both
15adults and juveniles will improve criminal investigation techniques,
16reduce the likelihood of wrongful convictions, and further the
17cause of justice in California.

18(3) Evidence of a defendant’s alleged statement or confession
19is one of the most significant pieces of evidence in any criminal
20trial. Although confessions and admissions are the most accurate
21evidence used to solve countless crimes, they can also lead to
22wrongful convictions. When there is a complete recording of the
23entire interrogation that produced such a statement or confession,
24the factfinder can evaluate its precise contents and any alleged
25coercive influences that may have produced it.

26(b) For these reasons, it is the intent of the Legislature to require
27electronic recording of custodial interrogations of both adults and
28juveniles. Recording interrogations decreases wrongful convictions
29based on false confessions and enhances public confidence in the
30criminal justice process. Properly recorded interrogations provide
31the best evidence of the communications that occurred during an
32interrogation, prevent disputes about how an officer conducted
33himself or herself or treated a suspect during the course of an
34interrogation, prevent a defendant from lying about the account
35of events he or she originally provided to law enforcement, and
36spare judges and jurors the time necessary and the need to assess
37which account of an interrogation to believe.

38

SEC. 2.  

Section 859.5 of the Penal Code is amended to read:

39

859.5.  

(a) Except as otherwise provided in this section, a
40custodial interrogation of any person, including an adult or a minor,
P4    1who is in a fixed place of detention, and suspected of committing
2murder, as listed in Section 187 or 189 of this code, or paragraph
3(1) of subdivision (b) of Section 707 of the Welfare and Institutions
4Code, shall be electronically recorded in its entirety. A statement
5that is electronically recorded as required pursuant to this section
6creates a rebuttable presumption that the electronically recorded
7statement was, in fact, given and was accurately recorded by the
8prosecution’s witnesses, provided that the electronic recording
9was made of the custodial interrogation in its entirety and the
10statement is otherwise admissible.

11(b) The requirement for the electronic recordation of a custodial
12interrogation pursuant to this section shall not apply under any of
13the following circumstances:

14(1) Electronic recording is not feasible because of exigent
15circumstances.begin delete Theend deletebegin insert An explanation of theend insert exigent circumstances
16shall bebegin delete recordedend deletebegin insert documentedend insert in the police report.

17(2) The person to be interrogated states that he or she will speak
18to a law enforcement officer only if the interrogation is not
19electronically recorded. If feasible, that statement shall be
20electronically recorded. The requirement also does not apply if the
21person being interrogated indicates during interrogation that he or
22she will not participate in further interrogation unless electronic
23recording ceases. If the person being interrogated refuses to record
24any statement, the officer shall document that refusal in writing.

25(3) The custodial interrogationbegin delete took placeend deletebegin insert occurredend insert in another
26jurisdiction and was conducted by law enforcement officers of that
27jurisdiction in compliance with the law of that jurisdiction, unless
28the interrogation was conducted with intent to avoid the
29requirements of this section.

30(4) The interrogation occurs when no law enforcement officer
31conducting the interrogation has knowledge of facts and
32circumstances that would lead an officer to reasonably believe that
33the individual being interrogated may have committed murder for
34which this section requires that a custodial interrogation be
35recorded. If during a custodial interrogation, the individual reveals
36facts and circumstances giving a law enforcement officer
37conducting the interrogation reason to believe that murder has
38 been committed, continued custodial interrogation concerning that
39offense shall be electronically recorded pursuant to this section.

P5    1(5) A law enforcement officer conducting the interrogation or
2the officer’s superior reasonably believes that electronic recording
3would disclose the identity of a confidential informant or jeopardize
4the safety of an officer, the individual being interrogated, or another
5individual. An explanation of the circumstances shall bebegin delete recordedend delete
6begin insert documentedend insert in the police report.

7(6) The failure to create an electronic recording of the entire
8custodial interrogation was the result of a malfunction of the
9recording device, despite reasonable maintenance of the equipment,
10and timely repair or replacement was not feasible.

11(7) The questions presented to a person by law enforcement
12personnel and the person’s responsive statements were part of a
13routine processing or booking of that person. Electronic recording
14is not required for spontaneous statements made in response to
15questions asked during the routine processing of the arrest of the
16person.

begin insert

17
(8) The interrogation of a person who is in custody on a charge
18of a violation of Section 187 or 189 of this code or paragraph (1)
19of subdivision (b) of Section 707 of the Welfare and Institutions
20Code if the interrogation is not related to any of these offenses. If,
21during the interrogation, any information concerning one of these
22offenses is raised or mentioned, continued custodial interrogation
23concerning that offense shall be electronically recorded pursuant
24to this section.

end insert

25(c) If the prosecution relies on an exception in subdivision (b)
26to justify a failure to make an electronic recording of a custodial
27interrogation, the prosecution shall show by clear and convincing
28evidence that the exception applies.

29(d) A person’s statements that were not electronically recorded
30pursuant to this section may be admitted into evidence in a criminal
31proceeding or in a juvenile court proceeding, as applicable, if the
32court finds that all of the following apply:

33(1) The statements are admissible under applicable rules of
34evidence.

35(2) The prosecution has proven by clear and convincing evidence
36that the statements were made voluntarily.

37(3) Law enforcement personnel made a contemporaneous audio
38or audio and visual recording of the reason for not making an
39electronic recording of the statements. This provision does not
P6    1apply if it was not feasible for law enforcement personnel to make
2that recording.

3(4) The prosecution has proven by clear and convincing evidence
4that one or more of the circumstances described in subdivision (b)
5existed at the time of the custodial interrogation.

6(e) Unless the court finds that an exception in subdivision (b)
7applies, all of the following remedies shall be granted as relief for
8noncompliance:

9(1) Failure to comply with any of the requirements of this section
10shall be considered by the court in adjudicating motions to suppress
11a statement of a defendant made during or after a custodial
12interrogation.

13(2) Failure to comply with any of the requirements of this section
14shall be admissible in support of claims that a defendant’s statement
15was involuntary or is unreliable, provided the evidence is otherwise
16admissible.

17(3) If the court finds that a defendant was subject to a custodial
18interrogation in violation of subdivision (a), the court shall provide
19the jury with an instruction, to be developed by the Judicial
20Council, that advises the jury to view with caution the statements
21made in that custodial interrogation.

22(f) The interrogating entity shall maintain the original or an
23exact copy of an electronic recording made of a custodial
24interrogation until a conviction for any offense relating to the
25interrogation is final and all direct and habeas corpus appeals are
26exhausted or the prosecution for that offense is barred by law or,
27in a juvenile court proceeding, as otherwise provided in subdivision
28(b) of Section 626.8 of the Welfare and Institutions Code. The
29interrogating entity may make one or more true, accurate, and
30complete copies of the electronic recording in a different format.

31(g) For the purposes of this section, the following terms have
32the following meanings:

33(1) “Custodial interrogation” means any interrogation in a fixed
34place of detention involving a law enforcement officer’s
35questioning that is reasonably likely to elicit incriminating
36responses, and in which a reasonable person in the subject’s
37position would consider himself or herself to be in custody,
38beginning when a person should have been advised of his or her
39constitutional rights, including the right to remain silent, the right
40to have counsel present during any interrogation, and the right to
P7    1have counsel appointed if the person is unable to afford counsel,
2and ending when the questioning has completely finished.

3(2) (A) For the purposes of the custodial interrogation of a
4minor, pursuant to subdivisionbegin delete (a),end deletebegin insert (a) or (b), “electronically
5recorded,” “electronic recordation,”end insert
begin insert andend insert “electronic recording”
6begin delete meansend deletebegin insert refer toend insert a video recording that accurately records a custodial
7interrogation.

8(B) For the purposes of the custodial interrogation of an adult,
9pursuant to subdivisionbegin delete (a),end deletebegin insert (a) or (b), “electronically recorded,”
10“electronic recordation,”end insert
begin insert andend insert “electronic recording”begin delete meansend deletebegin insert refer
11toend insert
a video or audio recording that accurately records a custodial
12interrogation.begin insert The Legislature encourages law enforcement
13agencies to use video recording when available.end insert

14(3) “Fixed place of detention” means a fixed location under the
15control of a law enforcement agency where an individual is held
16in detention in connection with a criminal offense that has been,
17or may be, filed against that person, including a jail, police or
18sheriff’s station, holding cell, correctional or detention facility,
19juvenile hall, or a facility of the Division of Juvenile Facilities.

20(4) “Law enforcement officer” means a person employed by a
21law enforcement agency whose duties include enforcing criminal
22laws or investigating criminal activity, or any other person who is
23acting at the request or direction of that person.

24

SEC. 3.  

If the Commission on State Mandates determines that
25this act contains costs mandated by the state, reimbursement to
26local agencies and school districts for those costs shall be made
27pursuant to Part 7 (commencing with Section 17500) of Division
284 of Title 2 of the Government Code.



O

    97