S.F. 26 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 peace officer as defined 21 in 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 35 -1- LSB 1113XS (2) 89 as/rh 1/ 10

S.F. 26 of the individual being questioned, and the waiver of any 1 rights by the individual, shall be recorded electronically 2 in its entirety if the interrogation relates to any crime or 3 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 1. 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 inform 18 the individual that an electronic recording is being made of 19 the interrogation. 20 2. This chapter shall not be construed to allow a law 21 enforcement officer or a law enforcement agency to record 22 a private communication between an individual and the 23 individual’s lawyer. 24 Sec. 4. NEW SECTION . 823.4 Feasibility of recording —— 25 spontaneous statement exceptions. 26 1. A custodial interrogation is not required to be recorded 27 electronically pursuant to section 823.2 if the recording is 28 not reasonably feasible under the circumstances. The law 29 enforcement officer conducting the custodial interrogation 30 shall record electronically an explanation of the exigent 31 circumstances before conducting the custodial interrogation, 32 if feasible, or as soon as practicable after the custodial 33 interrogation is completed. 34 2. An electronic recording is not required for a spontaneous 35 -2- LSB 1113XS (2) 89 as/rh 2/ 10

S.F. 26 statement made outside the course of a custodial interrogation 1 or a statement made in response to a question asked routinely 2 during the processing of an individual following the 3 individual’s arrest. 4 Sec. 5. NEW SECTION . 823.5 Refusal to be electronically 5 recorded —— exception. 6 1. A custodial interrogation is not required to be 7 recorded electronically pursuant to section 823.2 if the 8 individual to be interrogated indicates the individual will 9 not participate in the interrogation if the interrogation 10 is recorded electronically. If feasible, the agreement to 11 participate without an electronic recording must be recorded 12 electronically. 13 2. If, during a custodial interrogation that occurs 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 to 19 participate without further electronic recording must be 20 recorded electronically. 21 3. A law enforcement officer, with the specific intent to 22 avoid the electronic recording requirement in section 823.2, 23 shall not encourage an individual to request that an electronic 24 recording not be 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 electronic recording requirement in section 34 823.2. 35 -3- LSB 1113XS (2) 89 as/rh 3/ 10

S.F. 26 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 the law enforcement officer 4 conducting the custodial interrogation has no knowledge of 5 facts and circumstances that would lead the law enforcement 6 officer reasonably to believe that the individual being 7 interrogated may have committed an act which requires that a 8 custodial interrogation be recorded electronically pursuant to 9 section 823.2. 10 2. If, during such a custodial interrogation, the 11 individual being interrogated reveals facts and circumstances 12 giving the law enforcement officer conducting the custodial 13 interrogation reason to believe that an act has been 14 committed which requires that a custodial interrogation be 15 recorded electronically pursuant to section 823.2, continued 16 custodial interrogation concerning that act must be recorded 17 electronically, if feasible. 18 Sec. 8. NEW SECTION . 823.8 Safety —— exception. 19 A custodial interrogation is not required to be recorded 20 electronically pursuant to section 823.2 if the law enforcement 21 officer conducting the custodial interrogation or the officer’s 22 superior reasonably believes that electronic recording 23 would disclose the identity of a confidential informant 24 or jeopardize the safety of a law enforcement officer, the 25 individual being interrogated, or another individual. If 26 feasible and consistent with the safety of a confidential 27 informant, an explanation of the basis for the belief that an 28 electronic recording would disclose the informant’s identity 29 must be recorded electronically at the time of the custodial 30 interrogation. If contemporaneous recording of the basis for 31 the belief is not feasible, the electronic recording must be 32 made as soon as practicable after the custodial interrogation 33 is completed. 34 Sec. 9. NEW SECTION . 823.9 Equipment malfunction —— 35 -4- LSB 1113XS (2) 89 as/rh 4/ 10

S.F. 26 exception. 1 All or part of a custodial interrogation is not required to 2 be recorded electronically pursuant to section 823.2 to the 3 extent that the electronic recording is not feasible because 4 the available electronic recording equipment fails, despite 5 reasonable maintenance of the equipment, and timely repair or 6 replacement is not feasible. 7 Sec. 10. NEW SECTION . 823.10 Burden of proof. 8 If the prosecution relies on an exception described in 9 sections 823.4 through 823.9 to justify a failure to record 10 electronically a custodial interrogation, the prosecution must 11 prove by a preponderance of the evidence that the exception 12 applies. 13 Sec. 11. NEW SECTION . 823.11 Notice of intent to introduce 14 unrecorded statement. 15 If the prosecution intends to introduce in its case-in-chief 16 a statement made during a custodial interrogation which was 17 not recorded electronically and section 823.2 applies to that 18 statement, the prosecution, not later than the time specified 19 in rule of criminal procedure 2.11, shall serve the defendant 20 with written notice of that intent and of any exception on 21 which the prosecution intends to rely. 22 Sec. 12. NEW SECTION . 823.12 Procedural remedies. 23 1. Unless the court finds that an exception in sections 24 823.4 through 823.9 applies, the court shall consider the 25 failure to record electronically all or part of a custodial 26 interrogation pursuant to section 823.2 as a factor in 27 determining whether a statement made during the custodial 28 interrogation is admissible, including whether it was 29 voluntarily made. 30 2. If the court admits into evidence a statement made during 31 a custodial interrogation that was not recorded electronically 32 pursuant to section 823.2, the court, upon request of the 33 defendant, shall give a cautionary instruction to the jury, 34 unless such an instruction would be confusing or not beneficial 35 -5- LSB 1113XS (2) 89 as/rh 5/ 10

S.F. 26 to the jury. 1 Sec. 13. NEW SECTION . 823.13 Handling and preserving 2 electronic recording —— spoliation. 3 A law enforcement agency in this state shall establish and 4 enforce procedures to ensure that the electronic recording 5 of all or part of a custodial interrogation is identifiable, 6 accessible, and preserved for a period of three years after 7 the date of the limitation for the commencement of a criminal 8 action as set forth in chapter 802. 9 Sec. 14. NEW SECTION . 823.14 Rules relating to electronic 10 recording. 11 1. A law enforcement agency that is a governmental entity 12 of this state shall adopt and enforce rules to administer this 13 chapter. 14 2. The rules adopted under subsection 1 shall address the 15 following: 16 a. The manner in which an electronic recording is made. 17 b. The collection and supervisory review of an electronic 18 recording. 19 c. Supervisory responsibilities imposed on individuals 20 in specific positions in order to ensure adequate staffing, 21 education, training, material resources, and a chain of command 22 to promote internal accountability. 23 d. A process that details when noncompliance with procedures 24 occurs. 25 e. The imposition of administrative sanctions for failure to 26 comply with procedures that is not justified. 27 f. A process for monitoring the chain of custody of an 28 electronic recording. 29 3. The rules adopted under subsection 2, paragraph “a” , for 30 video recordings must contain standards for the angle, focus, 31 and field of vision of a recording device which reasonably 32 promote an accurate recording of a custodial interrogation at a 33 place of detention and a reliable assessment of its accuracy 34 and completeness. 35 -6- LSB 1113XS (2) 89 as/rh 6/ 10

S.F. 26 Sec. 15. NEW SECTION . 823.15 Self-authentication. 1 1. In any pretrial or post-trial proceeding, an electronic 2 recording of a custodial interrogation is self-authenticating 3 if it is accompanied by a certificate of authenticity sworn 4 under oath or affirmation by the appropriate law enforcement 5 officer. 6 2. This chapter shall not limit the right of an individual 7 to challenge the authenticity of an electronic recording of a 8 custodial interrogation under the laws of this state other than 9 as provided in this chapter. 10 Sec. 16. NEW SECTION . 823.16 Right to electronic recording 11 or transcript. 12 1. This chapter shall not create a right of an individual 13 to require a custodial interrogation to be recorded 14 electronically. 15 2. This chapter shall not require preparation of a 16 transcript of an electronic recording of a custodial 17 interrogation. 18 Sec. 17. NEW SECTION . 823.17 Relation to Electronic 19 Signatures in Global and National Commerce Act. 20 This chapter modifies, limits, or 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 electronic recordings of custodial 32 interrogations in criminal or juvenile cases. 33 Under the bill, a custodial interrogation at a place of 34 detention, including the giving of any required warning, 35 -7- LSB 1113XS (2) 89 as/rh 7/ 10

S.F. 26 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 a law enforcement officer’s vehicle, holding cell, and 14 correctional or detention facility. 15 The bill does not require a law enforcement officer to 16 obtain consent or inform the person being interrogated that the 17 interrogation is being electronically recorded. 18 The bill does not apply to a spontaneous statement made 19 outside the course of the custodial interrogation or a 20 statement made in response to a question asked routinely during 21 the processing of the arrest of an individual. 22 The requirements of the bill also do not apply to 23 the following situations: if the electronic recording 24 is not reasonably feasible under the circumstances, the 25 individual refuses to participate in the interrogation 26 if the interrogation is being recorded, the interrogation 27 occurs in another jurisdiction in compliance with the other 28 jurisdiction’s laws or by federal law enforcement in compliance 29 with federal law, the law enforcement officer has no knowledge 30 of the facts that would lead the officer to reasonably believe 31 that the individual being interrogated committed an act which 32 would require the interrogation to be electronically recorded, 33 the law enforcement officer conducting the interrogation 34 reasonably believes the electronic recording would disclose 35 -8- LSB 1113XS (2) 89 as/rh 8/ 10

S.F. 26 the identity of a confidential informant or jeopardize the 1 safety of an officer or another individual, or the electronic 2 recording equipment fails. 3 If feasible under the circumstances, the bill requires the 4 reason for not electronically recording an interrogation to be 5 contemporaneously electronically recorded. 6 The bill prohibits a law enforcement officer from 7 encouraging an individual to request an interrogation not be 8 electronically recorded. 9 If the prosecution relies on an exception to not 10 electronically record an interrogation, the bill specifies that 11 the burden is on the prosecution to prove by a preponderance of 12 the evidence that an exception does apply. 13 The bill requires the prosecution to provide written notice 14 to a defendant of the intent to rely upon a statement made in a 15 custodial interrogation which was not electronically recorded 16 within 40 days of arraignment. 17 The bill specifies that the court shall consider the 18 failure to electronically record all or part of a custodial 19 interrogation, unless an exception applies, as a factor in 20 determining whether a statement made during the interrogation 21 is admissible, including whether the statement was voluntarily 22 made. 23 The bill requires a law enforcement agency to establish and 24 enforce procedures to ensure that the electronic recording is 25 identifiable, accessible, and preserved for a period of three 26 years after the date of the limitation for the commencement of 27 a criminal action as set forth in Code chapter 802. 28 The bill requires a 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 1113XS (2) 89 as/rh 9/ 10

S.F. 26 custody of an electronic recording. 1 The bill does not create a right that requires a custodial 2 interrogation to be recorded electronically or require a 3 transcript of an 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 1113XS (2) 89 as/rh 10/ 10