H.F. _____ 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.2. 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, holding cell, and 26 correctional or detention facility. 27 6. “State” means a state of the United States, the District 28 of Columbia, Puerto Rico, the United States Virgin Islands, or 29 any territory or insular possession subject to the jurisdiction 30 of the United States. 31 7. “Statement” means a communication whether oral, written, 32 electronic, or nonverbal. 33 Sec. 2. NEW SECTION . 823.2 Electronic recording 34 requirement. 35 -1- LSB 5081YC (4) 85 jm/rj 1/ 10

H.F. _____ 1. Except as provided in this section and sections 1 823.4 through 823.9, a custodial interrogation at a place 2 of detention, including the giving of any required warning, 3 advice of the rights of the individual being questioned, and 4 the waiver of any rights by the individual, shall be recorded 5 electronically in its entirety means if the interrogation 6 relates to any crime or delinquent act. 7 2. If subsection 1 applies and a law enforcement officer 8 conducts a custodial interrogation without electronically 9 recording the interrogation in its entirety, the officer 10 shall prepare a written or electronic report explaining the 11 reason for not complying with this section and summarizing 12 the custodial interrogation process and the individual’s 13 statements. 14 3. A law enforcement officer shall prepare the report 15 required by subsection 2 as soon as practicable after 16 completing the custodial interrogation. 17 4. This section does not apply to a spontaneous statement 18 made outside the course of a custodial interrogation or a 19 statement made in response to a question asked routinely during 20 the processing of an individual following an arrest. 21 Sec. 3. NEW SECTION . 823.3 Notice and consent not required. 22 A law enforcement officer conducting a custodial 23 interrogation is not required to obtain consent to electronic 24 recording from the individual being interrogated or to 25 inform the individual that an electronic recording is being 26 made of the interrogation. This chapter does not permit 27 a law enforcement officer or a law enforcement agency to 28 record a private communication between an individual and the 29 individual’s lawyer. 30 Sec. 4. NEW SECTION . 823.4 Feasibility of recording —— 31 exception. 32 A custodial interrogation is not required to be recorded 33 electronically pursuant to section 823.2 if the recording is 34 not reasonably feasible under the circumstances. The law 35 -2- LSB 5081YC (4) 85 jm/rj 2/ 10

H.F. _____ enforcement officer conducting the custodial interrogation 1 shall record electronically an explanation of the exigent 2 circumstances before conducting the custodial interrogation, 3 if feasible, or as soon as practicable after the custodial 4 interrogation is completed. 5 Sec. 5. NEW SECTION . 823.5 Refusal to be electronically 6 recorded —— exception. 7 1. A custodial interrogation is not required to be recorded 8 electronically pursuant to section 823.2 if the individual 9 to be interrogated indicates that the individual will not 10 participate in the interrogation if the interrogation is 11 recorded electronically. If feasible, the agreement to 12 participate without recording must be recorded electronically. 13 2. If, during a custodial interrogation that applies under 14 section 823.2, the individual being interrogated indicates that 15 the individual will not participate in further interrogation 16 unless electronic recording ceases, the remainder of the 17 custodial interrogation is not required to be recorded 18 electronically. If feasible, the individual’s agreement 19 to participate without further recording must be recorded 20 electronically. 21 3. A law enforcement officer, with intent to avoid the 22 requirement of electronic recording in section 823.2, shall 23 not encourage an individual to request that a recording not be 24 made. 25 Sec. 6. NEW SECTION . 823.6 Interrogation conducted by other 26 jurisdiction —— exception. 27 If a custodial interrogation occurs in another state 28 in compliance with that state’s law or is conducted by a 29 federal law enforcement agency in compliance with federal law, 30 the custodial interrogation is not required to be recorded 31 electronically unless the custodial interrogation is conducted 32 on behalf of an Iowa law enforcement agency with the specific 33 intent to avoid the requirement of electronic recording in 34 section 823.2. 35 -3- LSB 5081YC (4) 85 jm/rj 3/ 10

H.F. _____ Sec. 7. NEW SECTION . 823.7 Belief —— exception. 1 1. A custodial interrogation is not required to be 2 recorded electronically pursuant to section 823.2 if the 3 custodial interrogation occurs when no law enforcement officer 4 conducting the custodial interrogation has knowledge of facts 5 and circumstances that would lead a law enforcement officer 6 reasonably to believe that the individual being interrogated 7 may have committed an act which requires that a custodial 8 interrogation be recorded electronically under section 823.2. 9 2. If, during such a custodial interrogation, the 10 individual being interrogated reveals facts and circumstances 11 giving a law enforcement officer conducting the custodial 12 interrogation reason to believe that an act has been 13 committed which requires that a custodial interrogation 14 be recorded electronically under section 823.2, continued 15 custodial interrogation concerning that act must be recorded 16 electronically, if feasible. 17 Sec. 8. NEW SECTION . 823.8 Safety —— exception. 18 A custodial interrogation is not required to be recorded 19 electronically pursuant to section 823.2 if a law enforcement 20 officer conducting the custodial interrogation or the officer’s 21 superior reasonably believes that electronic recording 22 would disclose the identity of a confidential informant 23 or jeopardize the safety of a law enforcement officer, the 24 individual being interrogated, or another individual. If 25 feasible and consistent with the safety of a confidential 26 informant, an explanation of the basis for the belief that 27 electronic recording would disclose the informant’s identity 28 must be recorded electronically at the time of the custodial 29 interrogation. If contemporaneous recording of the basis for 30 the belief is not feasible, the recording must be made as soon 31 as practicable after the custodial interrogation is completed. 32 Sec. 9. NEW SECTION . 823.9 Equipment malfunction —— 33 exception. 34 All or part of a custodial interrogation is not required to 35 -4- LSB 5081YC (4) 85 jm/rj 4/ 10

H.F. _____ be recorded electronically pursuant to section 823.2 to the 1 extent that recording is not feasible because the available 2 electronic recording equipment fails, despite reasonable 3 maintenance of the equipment, and timely repair or replacement 4 is not feasible. 5 Sec. 10. NEW SECTION . 823.10 Burden of proof. 6 If the prosecution relies on an exception described in 7 sections 823.4 through 823.9 to justify a failure to record 8 electronically a custodial interrogation, the prosecution must 9 prove by a preponderance of the evidence that the exception 10 applies. 11 Sec. 11. NEW SECTION . 823.11 Notice of intent to introduce 12 unrecorded statement. 13 If the prosecution intends to introduce in its case in chief 14 a statement made during a custodial interrogation which was 15 not recorded electronically and section 823.2 applies to that 16 statement, the prosecution, not later than the time specified 17 by rule of criminal procedure 2.11(4), Iowa court rules, shall 18 serve the defendant with written notice of that intent and of 19 any exception on which the prosecution intends to rely. 20 Sec. 12. NEW SECTION . 823.12 Procedural remedies. 21 1. Unless the court finds that an exception in sections 22 823.4 through 823.9 applies, the court shall consider the 23 failure to record electronically all or part of a custodial 24 interrogation in compliance with section 823.2 as a factor 25 in determining whether a statement made during the custodial 26 interrogation is admissible, including whether it was 27 voluntarily made. 28 2. If the court admits into evidence a statement made during 29 a custodial interrogation that was not recorded electronically 30 in compliance with section 823.2, the court, on request of the 31 defendant, shall give a cautionary instruction to the jury, 32 unless such an instruction would be confusing or not beneficial 33 to the jury. 34 Sec. 13. NEW SECTION . 823.13 Handling and preserving 35 -5- LSB 5081YC (4) 85 jm/rj 5/ 10

H.F. _____ electronic recording —— spoliation. 1 1. Each law enforcement agency in this state shall establish 2 and enforce procedures to ensure that the electronic recording 3 of all or part of a custodial interrogation is identifiable, 4 accessible, and preserved for a period of three years after 5 the date of the limitation for the commencement of a criminal 6 action as set forth in chapter 802. 7 2. This chapter does not create a cause of action for 8 damages or a presumption of spoliation in the event evidence 9 is no longer available. 10 Sec. 14. NEW SECTION . 823.14 Rules relating to electronic 11 recording. 12 1. Each law enforcement agency that is a governmental entity 13 of this state shall adopt and enforce rules to administer this 14 chapter. 15 2. The rules adopted under subsection 1 shall address the 16 following: 17 a. The manner in which an electronic recording is made. 18 b. The collection and supervisory review of an electronic 19 recording. 20 c. Supervisory responsibilities imposed on individuals 21 in specific positions in order to ensure adequate staffing, 22 education, training, material resources, and a chain of command 23 to promote internal accountability. 24 d. A process that details when noncompliance with procedures 25 occurs. 26 e. The imposition of administrative sanctions for a failure 27 to comply with procedures that is not justified. 28 f. A process for monitoring the chain of custody of an 29 electronic recording. 30 3. The rules adopted under subsection 2, paragraph “a” , for 31 video recordings must contain standards for the angle, focus, 32 and field of vision of a recording device which reasonably 33 promote accurate recording of a custodial interrogation at a 34 place of detention and reliable assessment of its accuracy and 35 -6- LSB 5081YC (4) 85 jm/rj 6/ 10

H.F. _____ completeness. 1 Sec. 15. NEW SECTION . 823.15 Self-authentication. 2 1. In any pretrial or posttrial proceeding, an electronic 3 recording of a custodial interrogation is self-authenticating 4 if it is accompanied by a certificate of authenticity sworn 5 under oath or affirmation by an appropriate law enforcement 6 officer. 7 2. This chapter does not limit the right of an individual 8 to challenge the authenticity of an electronic recording of a 9 custodial interrogation under law of this state other than this 10 chapter. 11 Sec. 16. NEW SECTION . 823.16 Right to electronic recording 12 or transcript. 13 1. This chapter does not create a right of an individual 14 to require a custodial interrogation to be recorded 15 electronically. 16 2. This chapter does not require preparation of a transcript 17 of an electronic recording of a custodial interrogation. 18 Sec. 17. NEW SECTION . 823.17 Relation to Electronic 19 Signatures in Global and National Commerce Act. 20 This chapter modifies, limits, and supersedes the federal 21 Electronic Signatures in Global and National Commerce Act, 15 22 U.S.C. §7001 et seq., but does not modify, limit, or supersede 23 section 101(c) of that Act, 15 U.S.C. §7001(c), or authorize 24 electronic delivery of any of the notices described in section 25 103(b) of that Act, 15 U.S.C. §7003(b). 26 Sec. 18. IMPLEMENTATION OF ACT. Section 25B.2, subsection 27 3, shall not apply to this Act. 28 EXPLANATION 29 The inclusion of this explanation does not constitute agreement with 30 the explanation’s substance by the members of the general assembly. 31 This bill relates to electronically recording a custodial 32 interrogation in a criminal or juvenile case. 33 Under the bill, a custodial interrogation at a place of 34 detention, including the giving of any required warning, 35 -7- LSB 5081YC (4) 85 jm/rj 7/ 10

H.F. _____ advice of the rights of the individual being questioned, and 1 the waiver of any rights by the individual, must be recorded 2 electronically in its entirety by both audio and video means if 3 the interrogation relates to any crime or delinquent act. 4 The bill defines “custodial interrogation” to mean 5 questioning or other conduct by a law enforcement officer which 6 is reasonably likely to elicit an incriminating response from 7 an individual and occurs when reasonable individuals in the 8 same circumstances would consider themselves in custody. 9 The bill defines “place of detention” to mean a fixed 10 location under the control of a law enforcement agency where 11 individuals are questioned about alleged crimes or delinquent 12 acts. The term includes a jail, police or sheriff’s station, 13 holding cell, and correctional or detention facility. 14 The bill does not require a law enforcement officer to 15 obtain consent or inform the person being interrogated that the 16 interrogation is being electronically recorded. 17 The bill does not apply to a spontaneous statement made 18 outside the course of the custodial interrogation or a 19 statement made in response to a question asked routinely during 20 the processing of the arrest of an individual. 21 The requirements of the bill also do not apply to 22 the following situations: the electronic recording is 23 not reasonably feasible under the circumstances, the 24 individual refuses to participate in the interrogation 25 if the interrogation is being recorded, the interrogation 26 occurs in another jurisdiction in compliance with the other 27 jurisdiction’s laws or by federal law enforcement in compliance 28 with federal law, the law enforcement officer has no knowledge 29 of the facts that would lead the officer to reasonably believe 30 that the individual being interrogated committed an act which 31 would require the interrogation to be electronically recorded, 32 the law enforcement officer conducting the interrogation 33 reasonably believes the electronic recording would disclose 34 the identity of a confidential informant or jeopardize the 35 -8- LSB 5081YC (4) 85 jm/rj 8/ 10

H.F. _____ safety of an officer or another individual, or the electronic 1 recording equipment fails. 2 If feasible under the circumstances, the bill requires the 3 reason for not electronically recording an interrogation to be 4 contemporaneously electronically recorded. 5 The bill prohibits a law enforcement officer from 6 encouraging an individual to request an interrogation not be 7 electronically recorded. 8 If the prosecution relies on an exception to not 9 electronically record an interrogation, the bill specifies that 10 the burden is on the prosecution to prove by a preponderance of 11 the evidence that an exception does apply. 12 The bill requires the prosecution to provide written notice 13 to a defendant of the intent to rely upon a statement made in a 14 custodial interrogation which was not electronically recorded 15 within 40 days of arraignment. 16 The bill specifies that the court shall consider the 17 failure to electronically record all or part of a custodial 18 interrogation, unless an exception applies, as a factor in 19 determining whether a statement made during the interrogation 20 is admissible, including whether the statement was voluntarily 21 made. 22 The bill requires each law enforcement agency to establish 23 and enforce procedures to ensure that the electronic recording 24 is identifiable, accessible, and preserved for a period 25 of three years after the date of the limitation for the 26 commencement of a criminal action as set forth in Code chapter 27 802. 28 The bill requires each law enforcement agency to establish 29 rules relating to the following: the manner in which an 30 electronic recording is made including the angle and focus 31 of the camera, supervisory responsibilities, a process 32 that details when noncompliance with procedures occurs, the 33 imposition of administrative sanctions for a failure to comply 34 with the procedures, and a process for monitoring the chain of 35 -9- LSB 5081YC (4) 85 jm/rj 9/ 10

H.F. _____ custody of an electronic recording. 1 The bill does not create a right to require a custodial 2 interrogation to be recorded electronically or require a 3 transcript of electronically recorded interrogation to be 4 prepared. 5 The bill may include a state mandate as defined in Code 6 section 25B.3. The bill makes inapplicable Code section 25B.2, 7 subsection 3, which would relieve a political subdivision from 8 complying with a state mandate if funding for the cost of 9 the state mandate is not provided or specified. Therefore, 10 political subdivisions are required to comply with any state 11 mandate included in the bill. 12 -10- LSB 5081YC (4) 85 jm/rj 10/ 10