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Senate File 44 - IntroducedA Bill ForAn Act 1relating to recording custodial interrogations in a
2criminal or juvenile case.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 823.1 Definitions.
2As used in this chapter, unless the context otherwise
3requires:
41. “Custodial interrogation” means questioning or other
5conduct by a law enforcement officer which is reasonably likely
6to elicit an incriminating response from an individual and
7occurs when reasonable individuals in the same circumstances
8would consider themselves in custody.
92. “Electronic recording” means an audio and video
10recording that accurately records a custodial interrogation.
11“Record electronically” and “recorded electronically” have a
12corresponding meaning.
133. “Law enforcement agency” means a governmental entity
14or other entity authorized by a governmental entity or state
15law to enforce criminal laws or investigate suspected criminal
16activity. The term does not include a law enforcement officer.
174. “Law enforcement officer” means an individual employed
18by a law enforcement agency whose responsibilities include
19enforcing criminal laws or investigating suspected criminal
20activity, including but not limited to a peace officer as
21defined in section 801.4 and a reserve officer as defined in
22section 80D.1A.
235. “Place of detention” means a fixed location under the
24control of a law enforcement agency where individuals are
25questioned about alleged crimes or delinquent acts. The term
26includes a jail, police or sheriff’s station, a law enforcement
27officer’s vehicle, holding cell, and correctional or detention
28facility.
296. “Statement” means a communication whether oral, written,
30electronic, or nonverbal.
31 Sec. 2. NEW SECTION. 823.2 Electronic recording
32requirement.
331. Except as provided in sections 823.4 through 823.9,
34a custodial interrogation at a place of detention, including
35the giving of any required warning, advice of the rights of
-1-1the individual being questioned, and the waiver of any rights
2by the individual, shall be recorded electronically in its
3entirety by both audio and video means if the interrogation
4relates to any crime or delinquent act.
52. If subsection 1 applies and a law enforcement officer
6conducts a custodial interrogation without electronically
7recording the interrogation in its entirety, the officer
8shall prepare a written or electronic report explaining the
9reason for not complying with this section and summarizing
10the custodial interrogation process and the individual’s
11statements.
123. A law enforcement officer shall prepare the report
13required by subsection 2 as soon as practicable after
14completing the custodial interrogation.
15 Sec. 3. NEW SECTION. 823.3 Notice and consent not required.
16A law enforcement officer conducting a custodial
17interrogation is not required to obtain consent to electronic
18recording from the individual being interrogated or to
19inform the individual that an electronic recording is being
20made of the interrogation. This chapter does not permit
21a law enforcement officer or a law enforcement agency to
22record a private communication between an individual and the
23individual’s lawyer.
24 Sec. 4. NEW SECTION. 823.4 Feasibility of recording —
25spontaneous statement exceptions.
261. A custodial interrogation is not required to be recorded
27electronically pursuant to section 823.2 if the recording is
28not reasonably feasible under the circumstances. The law
29enforcement officer conducting the custodial interrogation
30shall record electronically an explanation of the exigent
31circumstances before conducting the custodial interrogation,
32if feasible, or as soon as practicable after the custodial
33interrogation is completed.
342. An electronic recording is not required for a spontaneous
35statement made outside the course of a custodial interrogation
-2-1or a statement made in response to a question asked routinely
2during the processing of an individual following an arrest.
3 Sec. 5. NEW SECTION. 823.5 Refusal to be electronically
4recorded — exception.
51. A custodial interrogation is not required to be recorded
6electronically pursuant to section 823.2 if the individual
7to be interrogated indicates that the individual will not
8participate in the interrogation if the interrogation is
9recorded electronically. If feasible, the agreement to
10participate without recording must be recorded electronically.
112. If, during a custodial interrogation that applies under
12section 823.2, the individual being interrogated indicates that
13the individual will not participate in further interrogation
14unless electronic recording ceases, the remainder of the
15custodial interrogation is not required to be recorded
16electronically. If feasible, the individual’s agreement
17to participate without further recording must be recorded
18electronically.
193. A law enforcement officer, with the intent to avoid the
20requirement of electronic recording in section 823.2, shall
21not encourage an individual to request that a recording not be
22made.
23 Sec. 6. NEW SECTION. 823.6 Interrogation conducted by other
24jurisdiction — exception.
25If a custodial interrogation occurs in another state
26in compliance with that state’s law or is conducted by a
27federal law enforcement agency in compliance with federal law,
28the custodial interrogation is not required to be recorded
29electronically unless the custodial interrogation is conducted
30on behalf of an Iowa law enforcement agency with the specific
31intent to avoid the requirement of electronic recording in
32section 823.2.
33 Sec. 7. NEW SECTION. 823.7 Belief — exception.
341. A custodial interrogation is not required to be
35recorded electronically pursuant to section 823.2 if the
-3-1custodial interrogation occurs when no law enforcement officer
2conducting the custodial interrogation has knowledge of facts
3and circumstances that would lead a law enforcement officer
4reasonably to believe that the individual being interrogated
5may have committed an act which requires that a custodial
6interrogation be recorded electronically under section 823.2.
72. If, during such a custodial interrogation, the
8individual being interrogated reveals facts and circumstances
9giving a law enforcement officer conducting the custodial
10interrogation reason to believe that an act has been
11committed which requires that a custodial interrogation
12be recorded electronically under section 823.2, continued
13custodial interrogation concerning that act must be recorded
14electronically, if feasible.
15 Sec. 8. NEW SECTION. 823.8 Safety — exception.
16A custodial interrogation is not required to be recorded
17electronically pursuant to section 823.2 if a law enforcement
18officer conducting the custodial interrogation or the officer’s
19superior reasonably believes that electronic recording
20would disclose the identity of a confidential informant
21or jeopardize the safety of a law enforcement officer, the
22individual being interrogated, or another individual. If
23feasible and consistent with the safety of a confidential
24informant, an explanation of the basis for the belief that
25electronic recording would disclose the informant’s identity
26must be recorded electronically at the time of the custodial
27interrogation. If contemporaneous recording of the basis for
28the belief is not feasible, the recording must be made as soon
29as practicable after the custodial interrogation is completed.
30 Sec. 9. NEW SECTION. 823.9 Equipment malfunction —
31exception.
32All or part of a custodial interrogation is not required to
33be recorded electronically pursuant to section 823.2 to the
34extent that recording is not feasible because the available
35electronic recording equipment fails, despite reasonable
-4-1maintenance of the equipment, and timely repair or replacement
2is not feasible.
3 Sec. 10. NEW SECTION. 823.10 Burden of proof.
4If the prosecution relies on an exception described in
5sections 823.4 through 823.9 to justify a failure to record
6electronically a custodial interrogation, the prosecution must
7prove by a preponderance of the evidence that the exception
8applies.
9 Sec. 11. NEW SECTION. 823.11 Notice of intent to introduce
10unrecorded statement.
11If the prosecution intends to introduce in its case in chief
12a statement made during a custodial interrogation which was
13not recorded electronically and section 823.2 applies to that
14statement, the prosecution, not later than the time specified
15by rule of criminal procedure 2.11(4), Iowa court rules, shall
16serve the defendant with written notice of that intent and of
17any exception on which the prosecution intends to rely.
18 Sec. 12. NEW SECTION. 823.12 Procedural remedies.
191. Unless the court finds that an exception in sections
20823.4 through 823.9 applies, the court shall consider the
21failure to record electronically all or part of a custodial
22interrogation in compliance with section 823.2 as a factor
23in determining whether a statement made during the custodial
24interrogation is admissible, including whether it was
25voluntarily made.
262. If the court admits into evidence a statement made during
27a custodial interrogation that was not recorded electronically
28in compliance with section 823.2, the court, on request of the
29defendant, shall give a cautionary instruction to the jury,
30unless such an instruction would be confusing or not beneficial
31to the jury.
32 Sec. 13. NEW SECTION. 823.13 Handling and preserving
33electronic recording — spoliation.
34Each law enforcement agency in this state shall establish
35and enforce procedures to ensure that the electronic recording
-5-1of all or part of a custodial interrogation is identifiable,
2accessible, and preserved for a period of three years after
3the date of the limitation for the commencement of a criminal
4action as set forth in chapter 802.
5 Sec. 14. NEW SECTION. 823.14 Rules relating to electronic
6recording.
71. Each law enforcement agency that is a governmental entity
8of this state shall adopt and enforce rules to administer this
9chapter.
102. The rules adopted under subsection 1 shall address the
11following:
12a. The manner in which an electronic recording is made.
13b. The collection and supervisory review of an electronic
14recording.
15c. Supervisory responsibilities imposed on individuals
16in specific positions in order to ensure adequate staffing,
17education, training, material resources, and a chain of command
18to promote internal accountability.
19d. A process that details when noncompliance with procedures
20occurs.
21e. The imposition of administrative sanctions for a failure
22to comply with procedures that is not justified.
23f. A process for monitoring the chain of custody of an
24electronic recording.
253. The rules adopted under subsection 2, paragraph “a”, for
26video recordings must contain standards for the angle, focus,
27and field of vision of a recording device which reasonably
28promote accurate recording of a custodial interrogation at a
29place of detention and reliable assessment of its accuracy and
30completeness.
31 Sec. 15. NEW SECTION. 823.15 Self-authentication.
321. In any pretrial or posttrial proceeding, an electronic
33recording of a custodial interrogation is self-authenticating
34if it is accompanied by a certificate of authenticity sworn
35under oath or affirmation by an appropriate law enforcement
-6-1officer.
22. This chapter does not limit the right of an individual
3to challenge the authenticity of an electronic recording of a
4custodial interrogation under the laws of this state other than
5this chapter.
6 Sec. 16. NEW SECTION. 823.16 Right to electronic recording
7or transcript.
81. This chapter does not create a right of an individual
9to require a custodial interrogation to be recorded
10electronically.
112. This chapter does not require preparation of a transcript
12of an electronic recording of a custodial interrogation.
13 Sec. 17. NEW SECTION. 823.17 Relation to Electronic
14Signatures in Global and National Commerce Act.
15This chapter modifies, limits, and supersedes the federal
16Electronic Signatures in Global and National Commerce Act, 15
17U.S.C.§7001 et seq., but does not modify, limit, or supersede
18section 101(a) of that Act, 15 U.S.C.§7001(a), or authorize
19electronic delivery of any of the notices described in section
20103(b) of that Act, 15 U.S.C.§7003(b).
21 Sec. 18. IMPLEMENTATION OF ACT. Section 25B.2, subsection
223, shall not apply to this Act.
23EXPLANATION
24The inclusion of this explanation does not constitute agreement with
25the explanation’s substance by the members of the general assembly.
26This bill relates to electronic recordings of custodial
27interrogations in criminal or juvenile cases.
28Under the bill, a custodial interrogation at a place of
29detention, including the giving of any required warning,
30advice of the rights of the individual being questioned, and
31the waiver of any rights by the individual, must be recorded
32electronically in its entirety by both audio and video means if
33the interrogation relates to any crime or delinquent act.
34The bill defines “custodial interrogation” to mean
35questioning or other conduct by a law enforcement officer which
-7-1is reasonably likely to elicit an incriminating response from
2an individual and occurs when reasonable individuals in the
3same circumstances would consider themselves in custody.
4The bill defines “place of detention” to mean a fixed
5location under the control of a law enforcement agency where
6individuals are questioned about alleged crimes or delinquent
7acts. The term includes a jail, police or sheriff’s station,
8a law enforcement officer’s vehicle, holding cell, and
9correctional or detention facility.
10The bill does not require a law enforcement officer to
11obtain consent or inform the person being interrogated that the
12interrogation is being electronically recorded.
13The bill does not apply to a spontaneous statement made
14outside the course of the custodial interrogation or a
15statement made in response to a question asked routinely during
16the processing of the arrest of an individual.
17The requirements of the bill also do not apply to
18the following situations: the electronic recording is
19not reasonably feasible under the circumstances, the
20individual refuses to participate in the interrogation
21if the interrogation is being recorded, the interrogation
22occurs in another jurisdiction in compliance with the other
23jurisdiction’s laws or by federal law enforcement in compliance
24with federal law, the law enforcement officer has no knowledge
25of the facts that would lead the officer to reasonably believe
26that the individual being interrogated committed an act which
27would require the interrogation to be electronically recorded,
28the law enforcement officer conducting the interrogation
29reasonably believes the electronic recording would disclose
30the identity of a confidential informant or jeopardize the
31safety of an officer or another individual, or the electronic
32recording equipment fails.
33If feasible under the circumstances, the bill requires the
34reason for not electronically recording an interrogation to be
35contemporaneously electronically recorded.
-8- 1The bill prohibits a law enforcement officer from
2encouraging an individual to request an interrogation not be
3electronically recorded.
4If the prosecution relies on an exception to not
5electronically record an interrogation, the bill specifies that
6the burden is on the prosecution to prove by a preponderance of
7the evidence that an exception does apply.
8The bill requires the prosecution to provide written notice
9to a defendant of the intent to rely upon a statement made in a
10custodial interrogation which was not electronically recorded
11within 40 days of arraignment.
12The bill specifies that the court shall consider the
13failure to electronically record all or part of a custodial
14interrogation, unless an exception applies, as a factor in
15determining whether a statement made during the interrogation
16is admissible, including whether the statement was voluntarily
17made.
18The bill requires each law enforcement agency to establish
19and enforce procedures to ensure that the electronic recording
20is identifiable, accessible, and preserved for a period
21of three years after the date of the limitation for the
22commencement of a criminal action as set forth in Code chapter
23802.
24The bill requires each law enforcement agency to establish
25rules relating to the following: the manner in which an
26electronic recording is made including the angle and focus
27of the camera, supervisory responsibilities, a process
28that details when noncompliance with procedures occurs, the
29imposition of administrative sanctions for a failure to comply
30with the procedures, and a process for monitoring the chain of
31custody of an electronic recording.
32The bill does not create a right to require a custodial
33interrogation to be recorded electronically or require a
34transcript of an electronically recorded interrogation to be
35prepared.
-9- 1The bill may include a state mandate as defined in Code
2section 25B.3. The bill makes inapplicable Code section 25B.2,
3subsection 3, which would relieve a political subdivision from
4complying with a state mandate if funding for the cost of
5the state mandate is not provided or specified. Therefore,
6political subdivisions are required to comply with any state
7mandate included in the bill.
-10-as/rh
2criminal or juvenile case.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 823.1 Definitions.
2As used in this chapter, unless the context otherwise
3requires:
41. “Custodial interrogation” means questioning or other
5conduct by a law enforcement officer which is reasonably likely
6to elicit an incriminating response from an individual and
7occurs when reasonable individuals in the same circumstances
8would consider themselves in custody.
92. “Electronic recording” means an audio and video
10recording that accurately records a custodial interrogation.
11“Record electronically” and “recorded electronically” have a
12corresponding meaning.
133. “Law enforcement agency” means a governmental entity
14or other entity authorized by a governmental entity or state
15law to enforce criminal laws or investigate suspected criminal
16activity. The term does not include a law enforcement officer.
174. “Law enforcement officer” means an individual employed
18by a law enforcement agency whose responsibilities include
19enforcing criminal laws or investigating suspected criminal
20activity, including but not limited to a peace officer as
21defined in section 801.4 and a reserve officer as defined in
22section 80D.1A.
235. “Place of detention” means a fixed location under the
24control of a law enforcement agency where individuals are
25questioned about alleged crimes or delinquent acts. The term
26includes a jail, police or sheriff’s station, a law enforcement
27officer’s vehicle, holding cell, and correctional or detention
28facility.
296. “Statement” means a communication whether oral, written,
30electronic, or nonverbal.
31 Sec. 2. NEW SECTION. 823.2 Electronic recording
32requirement.
331. Except as provided in sections 823.4 through 823.9,
34a custodial interrogation at a place of detention, including
35the giving of any required warning, advice of the rights of
-1-1the individual being questioned, and the waiver of any rights
2by the individual, shall be recorded electronically in its
3entirety by both audio and video means if the interrogation
4relates to any crime or delinquent act.
52. If subsection 1 applies and a law enforcement officer
6conducts a custodial interrogation without electronically
7recording the interrogation in its entirety, the officer
8shall prepare a written or electronic report explaining the
9reason for not complying with this section and summarizing
10the custodial interrogation process and the individual’s
11statements.
123. A law enforcement officer shall prepare the report
13required by subsection 2 as soon as practicable after
14completing the custodial interrogation.
15 Sec. 3. NEW SECTION. 823.3 Notice and consent not required.
16A law enforcement officer conducting a custodial
17interrogation is not required to obtain consent to electronic
18recording from the individual being interrogated or to
19inform the individual that an electronic recording is being
20made of the interrogation. This chapter does not permit
21a law enforcement officer or a law enforcement agency to
22record a private communication between an individual and the
23individual’s lawyer.
24 Sec. 4. NEW SECTION. 823.4 Feasibility of recording —
25spontaneous statement exceptions.
261. A custodial interrogation is not required to be recorded
27electronically pursuant to section 823.2 if the recording is
28not reasonably feasible under the circumstances. The law
29enforcement officer conducting the custodial interrogation
30shall record electronically an explanation of the exigent
31circumstances before conducting the custodial interrogation,
32if feasible, or as soon as practicable after the custodial
33interrogation is completed.
342. An electronic recording is not required for a spontaneous
35statement made outside the course of a custodial interrogation
-2-1or a statement made in response to a question asked routinely
2during the processing of an individual following an arrest.
3 Sec. 5. NEW SECTION. 823.5 Refusal to be electronically
4recorded — exception.
51. A custodial interrogation is not required to be recorded
6electronically pursuant to section 823.2 if the individual
7to be interrogated indicates that the individual will not
8participate in the interrogation if the interrogation is
9recorded electronically. If feasible, the agreement to
10participate without recording must be recorded electronically.
112. If, during a custodial interrogation that applies under
12section 823.2, the individual being interrogated indicates that
13the individual will not participate in further interrogation
14unless electronic recording ceases, the remainder of the
15custodial interrogation is not required to be recorded
16electronically. If feasible, the individual’s agreement
17to participate without further recording must be recorded
18electronically.
193. A law enforcement officer, with the intent to avoid the
20requirement of electronic recording in section 823.2, shall
21not encourage an individual to request that a recording not be
22made.
23 Sec. 6. NEW SECTION. 823.6 Interrogation conducted by other
24jurisdiction — exception.
25If a custodial interrogation occurs in another state
26in compliance with that state’s law or is conducted by a
27federal law enforcement agency in compliance with federal law,
28the custodial interrogation is not required to be recorded
29electronically unless the custodial interrogation is conducted
30on behalf of an Iowa law enforcement agency with the specific
31intent to avoid the requirement of electronic recording in
32section 823.2.
33 Sec. 7. NEW SECTION. 823.7 Belief — exception.
341. A custodial interrogation is not required to be
35recorded electronically pursuant to section 823.2 if the
-3-1custodial interrogation occurs when no law enforcement officer
2conducting the custodial interrogation has knowledge of facts
3and circumstances that would lead a law enforcement officer
4reasonably to believe that the individual being interrogated
5may have committed an act which requires that a custodial
6interrogation be recorded electronically under section 823.2.
72. If, during such a custodial interrogation, the
8individual being interrogated reveals facts and circumstances
9giving a law enforcement officer conducting the custodial
10interrogation reason to believe that an act has been
11committed which requires that a custodial interrogation
12be recorded electronically under section 823.2, continued
13custodial interrogation concerning that act must be recorded
14electronically, if feasible.
15 Sec. 8. NEW SECTION. 823.8 Safety — exception.
16A custodial interrogation is not required to be recorded
17electronically pursuant to section 823.2 if a law enforcement
18officer conducting the custodial interrogation or the officer’s
19superior reasonably believes that electronic recording
20would disclose the identity of a confidential informant
21or jeopardize the safety of a law enforcement officer, the
22individual being interrogated, or another individual. If
23feasible and consistent with the safety of a confidential
24informant, an explanation of the basis for the belief that
25electronic recording would disclose the informant’s identity
26must be recorded electronically at the time of the custodial
27interrogation. If contemporaneous recording of the basis for
28the belief is not feasible, the recording must be made as soon
29as practicable after the custodial interrogation is completed.
30 Sec. 9. NEW SECTION. 823.9 Equipment malfunction —
31exception.
32All or part of a custodial interrogation is not required to
33be recorded electronically pursuant to section 823.2 to the
34extent that recording is not feasible because the available
35electronic recording equipment fails, despite reasonable
-4-1maintenance of the equipment, and timely repair or replacement
2is not feasible.
3 Sec. 10. NEW SECTION. 823.10 Burden of proof.
4If the prosecution relies on an exception described in
5sections 823.4 through 823.9 to justify a failure to record
6electronically a custodial interrogation, the prosecution must
7prove by a preponderance of the evidence that the exception
8applies.
9 Sec. 11. NEW SECTION. 823.11 Notice of intent to introduce
10unrecorded statement.
11If the prosecution intends to introduce in its case in chief
12a statement made during a custodial interrogation which was
13not recorded electronically and section 823.2 applies to that
14statement, the prosecution, not later than the time specified
15by rule of criminal procedure 2.11(4), Iowa court rules, shall
16serve the defendant with written notice of that intent and of
17any exception on which the prosecution intends to rely.
18 Sec. 12. NEW SECTION. 823.12 Procedural remedies.
191. Unless the court finds that an exception in sections
20823.4 through 823.9 applies, the court shall consider the
21failure to record electronically all or part of a custodial
22interrogation in compliance with section 823.2 as a factor
23in determining whether a statement made during the custodial
24interrogation is admissible, including whether it was
25voluntarily made.
262. If the court admits into evidence a statement made during
27a custodial interrogation that was not recorded electronically
28in compliance with section 823.2, the court, on request of the
29defendant, shall give a cautionary instruction to the jury,
30unless such an instruction would be confusing or not beneficial
31to the jury.
32 Sec. 13. NEW SECTION. 823.13 Handling and preserving
33electronic recording — spoliation.
34Each law enforcement agency in this state shall establish
35and enforce procedures to ensure that the electronic recording
-5-1of all or part of a custodial interrogation is identifiable,
2accessible, and preserved for a period of three years after
3the date of the limitation for the commencement of a criminal
4action as set forth in chapter 802.
5 Sec. 14. NEW SECTION. 823.14 Rules relating to electronic
6recording.
71. Each law enforcement agency that is a governmental entity
8of this state shall adopt and enforce rules to administer this
9chapter.
102. The rules adopted under subsection 1 shall address the
11following:
12a. The manner in which an electronic recording is made.
13b. The collection and supervisory review of an electronic
14recording.
15c. Supervisory responsibilities imposed on individuals
16in specific positions in order to ensure adequate staffing,
17education, training, material resources, and a chain of command
18to promote internal accountability.
19d. A process that details when noncompliance with procedures
20occurs.
21e. The imposition of administrative sanctions for a failure
22to comply with procedures that is not justified.
23f. A process for monitoring the chain of custody of an
24electronic recording.
253. The rules adopted under subsection 2, paragraph “a”, for
26video recordings must contain standards for the angle, focus,
27and field of vision of a recording device which reasonably
28promote accurate recording of a custodial interrogation at a
29place of detention and reliable assessment of its accuracy and
30completeness.
31 Sec. 15. NEW SECTION. 823.15 Self-authentication.
321. In any pretrial or posttrial proceeding, an electronic
33recording of a custodial interrogation is self-authenticating
34if it is accompanied by a certificate of authenticity sworn
35under oath or affirmation by an appropriate law enforcement
-6-1officer.
22. This chapter does not limit the right of an individual
3to challenge the authenticity of an electronic recording of a
4custodial interrogation under the laws of this state other than
5this chapter.
6 Sec. 16. NEW SECTION. 823.16 Right to electronic recording
7or transcript.
81. This chapter does not create a right of an individual
9to require a custodial interrogation to be recorded
10electronically.
112. This chapter does not require preparation of a transcript
12of an electronic recording of a custodial interrogation.
13 Sec. 17. NEW SECTION. 823.17 Relation to Electronic
14Signatures in Global and National Commerce Act.
15This chapter modifies, limits, and supersedes the federal
16Electronic Signatures in Global and National Commerce Act, 15
17U.S.C.§7001 et seq., but does not modify, limit, or supersede
18section 101(a) of that Act, 15 U.S.C.§7001(a), or authorize
19electronic delivery of any of the notices described in section
20103(b) of that Act, 15 U.S.C.§7003(b).
21 Sec. 18. IMPLEMENTATION OF ACT. Section 25B.2, subsection
223, shall not apply to this Act.
23EXPLANATION
24The inclusion of this explanation does not constitute agreement with
25the explanation’s substance by the members of the general assembly.
26This bill relates to electronic recordings of custodial
27interrogations in criminal or juvenile cases.
28Under the bill, a custodial interrogation at a place of
29detention, including the giving of any required warning,
30advice of the rights of the individual being questioned, and
31the waiver of any rights by the individual, must be recorded
32electronically in its entirety by both audio and video means if
33the interrogation relates to any crime or delinquent act.
34The bill defines “custodial interrogation” to mean
35questioning or other conduct by a law enforcement officer which
-7-1is reasonably likely to elicit an incriminating response from
2an individual and occurs when reasonable individuals in the
3same circumstances would consider themselves in custody.
4The bill defines “place of detention” to mean a fixed
5location under the control of a law enforcement agency where
6individuals are questioned about alleged crimes or delinquent
7acts. The term includes a jail, police or sheriff’s station,
8a law enforcement officer’s vehicle, holding cell, and
9correctional or detention facility.
10The bill does not require a law enforcement officer to
11obtain consent or inform the person being interrogated that the
12interrogation is being electronically recorded.
13The bill does not apply to a spontaneous statement made
14outside the course of the custodial interrogation or a
15statement made in response to a question asked routinely during
16the processing of the arrest of an individual.
17The requirements of the bill also do not apply to
18the following situations: the electronic recording is
19not reasonably feasible under the circumstances, the
20individual refuses to participate in the interrogation
21if the interrogation is being recorded, the interrogation
22occurs in another jurisdiction in compliance with the other
23jurisdiction’s laws or by federal law enforcement in compliance
24with federal law, the law enforcement officer has no knowledge
25of the facts that would lead the officer to reasonably believe
26that the individual being interrogated committed an act which
27would require the interrogation to be electronically recorded,
28the law enforcement officer conducting the interrogation
29reasonably believes the electronic recording would disclose
30the identity of a confidential informant or jeopardize the
31safety of an officer or another individual, or the electronic
32recording equipment fails.
33If feasible under the circumstances, the bill requires the
34reason for not electronically recording an interrogation to be
35contemporaneously electronically recorded.
-8- 1The bill prohibits a law enforcement officer from
2encouraging an individual to request an interrogation not be
3electronically recorded.
4If the prosecution relies on an exception to not
5electronically record an interrogation, the bill specifies that
6the burden is on the prosecution to prove by a preponderance of
7the evidence that an exception does apply.
8The bill requires the prosecution to provide written notice
9to a defendant of the intent to rely upon a statement made in a
10custodial interrogation which was not electronically recorded
11within 40 days of arraignment.
12The bill specifies that the court shall consider the
13failure to electronically record all or part of a custodial
14interrogation, unless an exception applies, as a factor in
15determining whether a statement made during the interrogation
16is admissible, including whether the statement was voluntarily
17made.
18The bill requires each law enforcement agency to establish
19and enforce procedures to ensure that the electronic recording
20is identifiable, accessible, and preserved for a period
21of three years after the date of the limitation for the
22commencement of a criminal action as set forth in Code chapter
23802.
24The bill requires each law enforcement agency to establish
25rules relating to the following: the manner in which an
26electronic recording is made including the angle and focus
27of the camera, supervisory responsibilities, a process
28that details when noncompliance with procedures occurs, the
29imposition of administrative sanctions for a failure to comply
30with the procedures, and a process for monitoring the chain of
31custody of an electronic recording.
32The bill does not create a right to require a custodial
33interrogation to be recorded electronically or require a
34transcript of an electronically recorded interrogation to be
35prepared.
-9- 1The bill may include a state mandate as defined in Code
2section 25B.3. The bill makes inapplicable Code section 25B.2,
3subsection 3, which would relieve a political subdivision from
4complying with a state mandate if funding for the cost of
5the state mandate is not provided or specified. Therefore,
6political subdivisions are required to comply with any state
7mandate included in the bill.
-10-as/rh