Senate
File
26
-
Introduced
SENATE
FILE
26
BY
BOLKCOM
A
BILL
FOR
An
Act
relating
to
the
electronic
recording
of
a
custodial
1
interrogation
in
a
criminal
or
juvenile
case.
2
BE
IT
ENACTED
BY
THE
GENERAL
ASSEMBLY
OF
THE
STATE
OF
IOWA:
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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
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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
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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.
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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
——
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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
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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.
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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,
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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
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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
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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.
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