S.F. 44 Section 1. NEW SECTION . 823.1 Definitions. 1 As used in this chapter, unless the context otherwise 2 requires: 3 1. “Custodial interrogation” means questioning or other 4 conduct by a law enforcement officer which is reasonably likely 5 to elicit an incriminating response from an individual and 6 occurs when reasonable individuals in the same circumstances 7 would consider themselves in custody. 8 2. “Electronic recording” means an audio and video 9 recording that accurately records a custodial interrogation. 10 “Record electronically” and “recorded electronically” have a 11 corresponding meaning. 12 3. “Law enforcement agency” means a governmental entity 13 or other entity authorized by a governmental entity or state 14 law to enforce criminal laws or investigate suspected criminal 15 activity. The term does not include a law enforcement officer. 16 4. “Law enforcement officer” means an individual employed 17 by a law enforcement agency whose responsibilities include 18 enforcing criminal laws or investigating suspected criminal 19 activity, including but not limited to a peace officer as 20 defined in section 801.4 and a reserve officer as defined in 21 section 80D.1A. 22 5. “Place of detention” means a fixed location under the 23 control of a law enforcement agency where individuals are 24 questioned about alleged crimes or delinquent acts. The term 25 includes a jail, police or sheriff’s station, a law enforcement 26 officer’s vehicle, holding cell, and correctional or detention 27 facility. 28 6. “Statement” means a communication whether oral, written, 29 electronic, or nonverbal. 30 Sec. 2. NEW SECTION . 823.2 Electronic recording 31 requirement. 32 1. Except as provided in sections 823.4 through 823.9, 33 a custodial interrogation at a place of detention, including 34 the giving of any required warning, advice of the rights of 35 -1- LSB 1331XS (2) 88 as/rh 1/ 10

S.F. 44 the individual being questioned, and the waiver of any rights 1 by the individual, shall be recorded electronically in its 2 entirety by both audio and video means if the interrogation 3 relates to any crime or delinquent act. 4 2. If subsection 1 applies and a law enforcement officer 5 conducts a custodial interrogation without electronically 6 recording the interrogation in its entirety, the officer 7 shall prepare a written or electronic report explaining the 8 reason for not complying with this section and summarizing 9 the custodial interrogation process and the individual’s 10 statements. 11 3. A law enforcement officer shall prepare the report 12 required by subsection 2 as soon as practicable after 13 completing the custodial interrogation. 14 Sec. 3. NEW SECTION . 823.3 Notice and consent not required. 15 A law enforcement officer conducting a custodial 16 interrogation is not required to obtain consent to electronic 17 recording from the individual being interrogated or to 18 inform the individual that an electronic recording is being 19 made of the interrogation. This chapter does not permit 20 a law enforcement officer or a law enforcement agency to 21 record a private communication between an individual and the 22 individual’s lawyer. 23 Sec. 4. NEW SECTION . 823.4 Feasibility of recording —— 24 spontaneous statement exceptions. 25 1. A custodial interrogation is not required to be recorded 26 electronically pursuant to section 823.2 if the recording is 27 not reasonably feasible under the circumstances. The law 28 enforcement officer conducting the custodial interrogation 29 shall record electronically an explanation of the exigent 30 circumstances before conducting the custodial interrogation, 31 if feasible, or as soon as practicable after the custodial 32 interrogation is completed. 33 2. An electronic recording is not required for a spontaneous 34 statement made outside the course of a custodial interrogation 35 -2- LSB 1331XS (2) 88 as/rh 2/ 10

S.F. 44 or a statement made in response to a question asked routinely 1 during the processing of an individual following an arrest. 2 Sec. 5. NEW SECTION . 823.5 Refusal to be electronically 3 recorded —— exception. 4 1. A custodial interrogation is not required to be recorded 5 electronically pursuant to section 823.2 if the individual 6 to be interrogated indicates that the individual will not 7 participate in the interrogation if the interrogation is 8 recorded electronically. If feasible, the agreement to 9 participate without recording must be recorded electronically. 10 2. If, during a custodial interrogation that applies under 11 section 823.2, the individual being interrogated indicates that 12 the individual will not participate in further interrogation 13 unless electronic recording ceases, the remainder of the 14 custodial interrogation is not required to be recorded 15 electronically. If feasible, the individual’s agreement 16 to participate without further recording must be recorded 17 electronically. 18 3. A law enforcement officer, with the intent to avoid the 19 requirement of electronic recording in section 823.2, shall 20 not encourage an individual to request that a recording not be 21 made. 22 Sec. 6. NEW SECTION . 823.6 Interrogation conducted by other 23 jurisdiction —— exception. 24 If a custodial interrogation occurs in another state 25 in compliance with that state’s law or is conducted by a 26 federal law enforcement agency in compliance with federal law, 27 the custodial interrogation is not required to be recorded 28 electronically unless the custodial interrogation is conducted 29 on behalf of an Iowa law enforcement agency with the specific 30 intent to avoid the requirement of electronic recording in 31 section 823.2. 32 Sec. 7. NEW SECTION . 823.7 Belief —— exception. 33 1. A custodial interrogation is not required to be 34 recorded electronically pursuant to section 823.2 if the 35 -3- LSB 1331XS (2) 88 as/rh 3/ 10

S.F. 44 custodial interrogation occurs when no law enforcement officer 1 conducting the custodial interrogation has knowledge of facts 2 and circumstances that would lead a law enforcement officer 3 reasonably to believe that the individual being interrogated 4 may have committed an act which requires that a custodial 5 interrogation be recorded electronically under section 823.2. 6 2. If, during such a custodial interrogation, the 7 individual being interrogated reveals facts and circumstances 8 giving a law enforcement officer conducting the custodial 9 interrogation reason to believe that an act has been 10 committed which requires that a custodial interrogation 11 be recorded electronically under section 823.2, continued 12 custodial interrogation concerning that act must be recorded 13 electronically, if feasible. 14 Sec. 8. NEW SECTION . 823.8 Safety —— exception. 15 A custodial interrogation is not required to be recorded 16 electronically pursuant to section 823.2 if a law enforcement 17 officer conducting the custodial interrogation or the officer’s 18 superior reasonably believes that electronic recording 19 would disclose the identity of a confidential informant 20 or jeopardize the safety of a law enforcement officer, the 21 individual being interrogated, or another individual. If 22 feasible and consistent with the safety of a confidential 23 informant, an explanation of the basis for the belief that 24 electronic recording would disclose the informant’s identity 25 must be recorded electronically at the time of the custodial 26 interrogation. If contemporaneous recording of the basis for 27 the belief is not feasible, the recording must be made as soon 28 as practicable after the custodial interrogation is completed. 29 Sec. 9. NEW SECTION . 823.9 Equipment malfunction —— 30 exception. 31 All or part of a custodial interrogation is not required to 32 be recorded electronically pursuant to section 823.2 to the 33 extent that recording is not feasible because the available 34 electronic recording equipment fails, despite reasonable 35 -4- LSB 1331XS (2) 88 as/rh 4/ 10

S.F. 44 maintenance of the equipment, and timely repair or replacement 1 is not feasible. 2 Sec. 10. NEW SECTION . 823.10 Burden of proof. 3 If the prosecution relies on an exception described in 4 sections 823.4 through 823.9 to justify a failure to record 5 electronically a custodial interrogation, the prosecution must 6 prove by a preponderance of the evidence that the exception 7 applies. 8 Sec. 11. NEW SECTION . 823.11 Notice of intent to introduce 9 unrecorded statement. 10 If the prosecution intends to introduce in its case in chief 11 a statement made during a custodial interrogation which was 12 not recorded electronically and section 823.2 applies to that 13 statement, the prosecution, not later than the time specified 14 by rule of criminal procedure 2.11(4), Iowa court rules, shall 15 serve the defendant with written notice of that intent and of 16 any exception on which the prosecution intends to rely. 17 Sec. 12. NEW SECTION . 823.12 Procedural remedies. 18 1. Unless the court finds that an exception in sections 19 823.4 through 823.9 applies, the court shall consider the 20 failure to record electronically all or part of a custodial 21 interrogation in compliance with section 823.2 as a factor 22 in determining whether a statement made during the custodial 23 interrogation is admissible, including whether it was 24 voluntarily made. 25 2. If the court admits into evidence a statement made during 26 a custodial interrogation that was not recorded electronically 27 in compliance with section 823.2, the court, on request of the 28 defendant, shall give a cautionary instruction to the jury, 29 unless such an instruction would be confusing or not beneficial 30 to the jury. 31 Sec. 13. NEW SECTION . 823.13 Handling and preserving 32 electronic recording —— spoliation. 33 Each law enforcement agency in this state shall establish 34 and enforce procedures to ensure that the electronic recording 35 -5- LSB 1331XS (2) 88 as/rh 5/ 10

S.F. 44 of all or part of a custodial interrogation is identifiable, 1 accessible, and preserved for a period of three years after 2 the date of the limitation for the commencement of a criminal 3 action as set forth in chapter 802. 4 Sec. 14. NEW SECTION . 823.14 Rules relating to electronic 5 recording. 6 1. Each law enforcement agency that is a governmental entity 7 of this state shall adopt and enforce rules to administer this 8 chapter. 9 2. The rules adopted under subsection 1 shall address the 10 following: 11 a. The manner in which an electronic recording is made. 12 b. The collection and supervisory review of an electronic 13 recording. 14 c. Supervisory responsibilities imposed on individuals 15 in specific positions in order to ensure adequate staffing, 16 education, training, material resources, and a chain of command 17 to promote internal accountability. 18 d. A process that details when noncompliance with procedures 19 occurs. 20 e. The imposition of administrative sanctions for a failure 21 to comply with procedures that is not justified. 22 f. A process for monitoring the chain of custody of an 23 electronic recording. 24 3. The rules adopted under subsection 2, paragraph “a” , for 25 video recordings must contain standards for the angle, focus, 26 and field of vision of a recording device which reasonably 27 promote accurate recording of a custodial interrogation at a 28 place of detention and reliable assessment of its accuracy and 29 completeness. 30 Sec. 15. NEW SECTION . 823.15 Self-authentication. 31 1. In any pretrial or posttrial proceeding, an electronic 32 recording of a custodial interrogation is self-authenticating 33 if it is accompanied by a certificate of authenticity sworn 34 under oath or affirmation by an appropriate law enforcement 35 -6- LSB 1331XS (2) 88 as/rh 6/ 10

S.F. 44 officer. 1 2. This chapter does not limit the right of an individual 2 to challenge the authenticity of an electronic recording of a 3 custodial interrogation under the laws of this state other than 4 this chapter. 5 Sec. 16. NEW SECTION . 823.16 Right to electronic recording 6 or transcript. 7 1. This chapter does not create a right of an individual 8 to require a custodial interrogation to be recorded 9 electronically. 10 2. This chapter does not require preparation of a transcript 11 of an electronic recording of a custodial interrogation. 12 Sec. 17. NEW SECTION . 823.17 Relation to Electronic 13 Signatures in Global and National Commerce Act. 14 This chapter modifies, limits, and supersedes the federal 15 Electronic Signatures in Global and National Commerce Act, 15 16 U.S.C. §7001 et seq., but does not modify, limit, or supersede 17 section 101(a) of that Act, 15 U.S.C. §7001(a), or authorize 18 electronic delivery of any of the notices described in section 19 103(b) of that Act, 15 U.S.C. §7003(b). 20 Sec. 18. IMPLEMENTATION OF ACT. Section 25B.2, subsection 21 3, shall not apply to this Act. 22 EXPLANATION 23 The inclusion of this explanation does not constitute agreement with 24 the explanation’s substance by the members of the general assembly. 25 This bill relates to electronic recordings of custodial 26 interrogations in criminal or juvenile cases. 27 Under the bill, a custodial interrogation at a place of 28 detention, including the giving of any required warning, 29 advice of the rights of the individual being questioned, and 30 the waiver of any rights by the individual, must be recorded 31 electronically in its entirety by both audio and video means if 32 the interrogation relates to any crime or delinquent act. 33 The bill defines “custodial interrogation” to mean 34 questioning or other conduct by a law enforcement officer which 35 -7- LSB 1331XS (2) 88 as/rh 7/ 10

S.F. 44 is reasonably likely to elicit an incriminating response from 1 an individual and occurs when reasonable individuals in the 2 same circumstances would consider themselves in custody. 3 The bill defines “place of detention” to mean a fixed 4 location under the control of a law enforcement agency where 5 individuals are questioned about alleged crimes or delinquent 6 acts. The term includes a jail, police or sheriff’s station, 7 a law enforcement officer’s vehicle, holding cell, and 8 correctional or detention facility. 9 The bill does not require a law enforcement officer to 10 obtain consent or inform the person being interrogated that the 11 interrogation is being electronically recorded. 12 The bill does not apply to a spontaneous statement made 13 outside the course of the custodial interrogation or a 14 statement made in response to a question asked routinely during 15 the processing of the arrest of an individual. 16 The requirements of the bill also do not apply to 17 the following situations: the electronic recording is 18 not reasonably feasible under the circumstances, the 19 individual refuses to participate in the interrogation 20 if the interrogation is being recorded, the interrogation 21 occurs in another jurisdiction in compliance with the other 22 jurisdiction’s laws or by federal law enforcement in compliance 23 with federal law, the law enforcement officer has no knowledge 24 of the facts that would lead the officer to reasonably believe 25 that the individual being interrogated committed an act which 26 would require the interrogation to be electronically recorded, 27 the law enforcement officer conducting the interrogation 28 reasonably believes the electronic recording would disclose 29 the identity of a confidential informant or jeopardize the 30 safety of an officer or another individual, or the electronic 31 recording equipment fails. 32 If feasible under the circumstances, the bill requires the 33 reason for not electronically recording an interrogation to be 34 contemporaneously electronically recorded. 35 -8- LSB 1331XS (2) 88 as/rh 8/ 10

S.F. 44 The bill prohibits a law enforcement officer from 1 encouraging an individual to request an interrogation not be 2 electronically recorded. 3 If the prosecution relies on an exception to not 4 electronically record an interrogation, the bill specifies that 5 the burden is on the prosecution to prove by a preponderance of 6 the evidence that an exception does apply. 7 The bill requires the prosecution to provide written notice 8 to a defendant of the intent to rely upon a statement made in a 9 custodial interrogation which was not electronically recorded 10 within 40 days of arraignment. 11 The bill specifies that the court shall consider the 12 failure to electronically record all or part of a custodial 13 interrogation, unless an exception applies, as a factor in 14 determining whether a statement made during the interrogation 15 is admissible, including whether the statement was voluntarily 16 made. 17 The bill requires each law enforcement agency to establish 18 and enforce procedures to ensure that the electronic recording 19 is identifiable, accessible, and preserved for a period 20 of three years after the date of the limitation for the 21 commencement of a criminal action as set forth in Code chapter 22 802. 23 The bill requires each law enforcement agency to establish 24 rules relating to the following: the manner in which an 25 electronic recording is made including the angle and focus 26 of the camera, supervisory responsibilities, a process 27 that details when noncompliance with procedures occurs, the 28 imposition of administrative sanctions for a failure to comply 29 with the procedures, and a process for monitoring the chain of 30 custody of an electronic recording. 31 The bill does not create a right to require a custodial 32 interrogation to be recorded electronically or require a 33 transcript of an electronically recorded interrogation to be 34 prepared. 35 -9- LSB 1331XS (2) 88 as/rh 9/ 10

S.F. 44 The bill may include a state mandate as defined in Code 1 section 25B.3. The bill makes inapplicable Code section 25B.2, 2 subsection 3, which would relieve a political subdivision from 3 complying with a state mandate if funding for the cost of 4 the state mandate is not provided or specified. Therefore, 5 political subdivisions are required to comply with any state 6 mandate included in the bill. 7 -10- LSB 1331XS (2) 88 as/rh 10/ 10