Bill Text: CA SB1389 | 2015-2016 | Regular Session | Chaptered
Bill Title: Interrogation: electronic recordation.
Spectrum: Slight Partisan Bill (Democrat 5-2)
Status: (Passed) 2016-09-28 - Chaptered by Secretary of State. Chapter 791, Statutes of 2016. [SB1389 Detail]
Download: California-2015-SB1389-Chaptered.html
BILL NUMBER: SB 1389 CHAPTERED
BILL TEXT
CHAPTER 791
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2016
APPROVED BY GOVERNOR SEPTEMBER 28, 2016
PASSED THE SENATE AUGUST 25, 2016
PASSED THE ASSEMBLY AUGUST 23, 2016
AMENDED IN ASSEMBLY AUGUST 15, 2016
AMENDED IN SENATE MAY 31, 2016
INTRODUCED BY Senators Glazer and Hernandez
(Coauthors: Senators Anderson, Hancock, Leno, and Stone)
(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, 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 make this electronic recording requirement
applicable to the custodial interrogation of any person suspected of
committing murder. By imposing new requirements on local law
enforcement, this bill would impose a state-mandated local program.
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.
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 a minor. The bill would expand the
definition to include a video or audio recording in the case of the
custodial interrogation of an adult and would express the Legislature'
s encouragement that law enforcement agencies use video recording
when available.
This bill would make technical, nonsubstantive changes to the
above provisions.
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.
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 an adult or a minor,
who is in a fixed place of detention, and suspected of committing
murder, as listed in Section 187 or 189 of this code, 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. An explanation of the exigent circumstances shall be
documented 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 occurred 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
documented 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.
(8) The interrogation of a person who is in custody on a charge of
a violation of Section 187 or 189 of this code or paragraph (1) of
subdivision (b) of Section 707 of the Welfare and Institutions Code
if the interrogation is not related to any of these offenses. If,
during the interrogation, any information concerning one of these
offenses is raised or mentioned, continued custodial interrogation
concerning that offense shall be electronically recorded pursuant to
this section.
(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) (A) For the purposes of the custodial interrogation of a
minor, pursuant to subdivision (a) or (b), "electronically recorded,"
"electronic recordation," and "electronic recording" refer to a
video recording that accurately records a custodial interrogation.
(B) For the purposes of the custodial interrogation of an adult,
pursuant to subdivision (a) or (b), "electronically recorded,"
"electronic recordation," and "electronic recording" refer to a video
or audio recording that accurately records a custodial
interrogation. The Legislature encourages law enforcement agencies to
use video recording when available.
(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.
