Senate File 26 - IntroducedA Bill ForAn Act 1relating to the electronic recording of a custodial
2interrogation in a criminal 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 peace officer as defined
22in section 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
-1-1of the individual being questioned, and the waiver of any
2rights by the individual, shall be recorded electronically
3in its entirety if the interrogation relates to any crime or
4delinquent 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.
   161.  A law enforcement officer conducting a custodial
17interrogation is not required to obtain consent to electronic
18recording from the individual being interrogated or to inform
19the individual that an electronic recording is being made of
20the interrogation.
   212.  This chapter shall not be construed to allow a law
22enforcement officer or a law enforcement agency to record
23a private communication between an individual and the
24individual’s lawyer.
25   Sec. 4.  NEW SECTION.  823.4  Feasibility of recording —
26spontaneous statement exceptions.
   271.  A custodial interrogation is not required to be recorded
28electronically pursuant to section 823.2 if the recording is
29not reasonably feasible under the circumstances. The law
30enforcement officer conducting the custodial interrogation
31shall record electronically an explanation of the exigent
32circumstances before conducting the custodial interrogation,
33if feasible, or as soon as practicable after the custodial
34interrogation is completed.
   352.  An electronic recording is not required for a spontaneous
-2-1statement made outside the course of a custodial interrogation
2or a statement made in response to a question asked routinely
3during the processing of an individual following the
4individual’s arrest.
5   Sec. 5.  NEW SECTION.  823.5  Refusal to be electronically
6recorded — exception.
   71.  A custodial interrogation is not required to be
8recorded electronically pursuant to section 823.2 if the
9individual to be interrogated indicates the individual will
10not participate in the interrogation if the interrogation
11is recorded electronically. If feasible, the agreement to
12participate without an electronic recording must be recorded
13electronically.
   142.  If, during a custodial interrogation that occurs under
15section 823.2, the individual being interrogated indicates that
16the individual will not participate in further interrogation
17unless electronic recording ceases, the remainder of the
18custodial interrogation is not required to be recorded
19electronically. If feasible, the individual’s agreement to
20participate without further electronic recording must be
21recorded electronically.
   223.  A law enforcement officer, with the specific intent to
23avoid the electronic recording requirement in section 823.2,
24shall not encourage an individual to request that an electronic
25recording not be made.
26   Sec. 6.  NEW SECTION.  823.6  Interrogation conducted by other
27jurisdiction — exception.
   28If a custodial interrogation occurs in another state
29in compliance with that state’s law or is conducted by a
30federal law enforcement agency in compliance with federal law,
31the custodial interrogation is not required to be recorded
32electronically unless the custodial interrogation is conducted
33on behalf of an Iowa law enforcement agency with the specific
34intent to avoid the electronic recording requirement in section
35823.2.
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1   Sec. 7.  NEW SECTION.  823.7  Belief — exception.
   21.  A custodial interrogation is not required to be
3recorded electronically pursuant to section 823.2 if the
4custodial interrogation occurs when the law enforcement officer
5conducting the custodial interrogation has no knowledge of
6facts and circumstances that would lead the law enforcement
7officer reasonably to believe that the individual being
8interrogated may have committed an act which requires that a
9custodial interrogation be recorded electronically pursuant to
10section 823.2.
   112.  If, during such a custodial interrogation, the
12individual being interrogated reveals facts and circumstances
13giving the law enforcement officer conducting the custodial
14interrogation reason to believe that an act has been
15committed which requires that a custodial interrogation be
16recorded electronically pursuant to section 823.2, continued
17custodial interrogation concerning that act must be recorded
18electronically, if feasible.
19   Sec. 8.  NEW SECTION.  823.8  Safety — exception.
   20A custodial interrogation is not required to be recorded
21electronically pursuant to section 823.2 if the law enforcement
22officer conducting the custodial interrogation or the officer’s
23superior reasonably believes that electronic recording
24would disclose the identity of a confidential informant
25or jeopardize the safety of a law enforcement officer, the
26individual being interrogated, or another individual. If
27feasible and consistent with the safety of a confidential
28informant, an explanation of the basis for the belief that an
29electronic recording would disclose the informant’s identity
30must be recorded electronically at the time of the custodial
31interrogation. If contemporaneous recording of the basis for
32the belief is not feasible, the electronic recording must be
33made as soon as practicable after the custodial interrogation
34is completed.
35   Sec. 9.  NEW SECTION.  823.9  Equipment malfunction —
-4-1exception.
   2All or part of a custodial interrogation is not required to
3be recorded electronically pursuant to section 823.2 to the
4extent that the electronic recording is not feasible because
5the available electronic recording equipment fails, despite
6reasonable maintenance of the equipment, and timely repair or
7replacement is not feasible.
8   Sec. 10.  NEW SECTION.  823.10  Burden of proof.
   9If the prosecution relies on an exception described in
10sections 823.4 through 823.9 to justify a failure to record
11electronically a custodial interrogation, the prosecution must
12prove by a preponderance of the evidence that the exception
13applies.
14   Sec. 11.  NEW SECTION.  823.11  Notice of intent to introduce
15unrecorded statement.
   16If the prosecution intends to introduce in its case-in-chief
17a statement made during a custodial interrogation which was
18not recorded electronically and section 823.2 applies to that
19statement, the prosecution, not later than the time specified
20in rule of criminal procedure 2.11, shall serve the defendant
21with written notice of that intent and of any exception on
22which the prosecution intends to rely.
23   Sec. 12.  NEW SECTION.  823.12  Procedural remedies.
   241.  Unless the court finds that an exception in sections
25823.4 through 823.9 applies, the court shall consider the
26failure to record electronically all or part of a custodial
27interrogation pursuant to section 823.2 as a factor in
28determining whether a statement made during the custodial
29interrogation is admissible, including whether it was
30voluntarily made.
   312.  If the court admits into evidence a statement made during
32a custodial interrogation that was not recorded electronically
33pursuant to section 823.2, the court, upon request of the
34defendant, shall give a cautionary instruction to the jury,
35unless such an instruction would be confusing or not beneficial
-5-1to the jury.
2   Sec. 13.  NEW SECTION.  823.13  Handling and preserving
3electronic recording — spoliation.
   4A law enforcement agency in this state shall establish and
5enforce procedures to ensure that the electronic recording
6of all or part of a custodial interrogation is identifiable,
7accessible, and preserved for a period of three years after
8the date of the limitation for the commencement of a criminal
9action as set forth in chapter 802.
10   Sec. 14.  NEW SECTION.  823.14  Rules relating to electronic
11recording.
   121.  A law enforcement agency that is a governmental entity
13of this state shall adopt and enforce rules to administer this
14chapter.
   152.  The rules adopted under subsection 1 shall address the
16following:
   17a.  The manner in which an electronic recording is made.
   18b.  The collection and supervisory review of an electronic
19recording.
   20c.  Supervisory responsibilities imposed on individuals
21in specific positions in order to ensure adequate staffing,
22education, training, material resources, and a chain of command
23to promote internal accountability.
   24d.  A process that details when noncompliance with procedures
25occurs.
   26e.  The imposition of administrative sanctions for failure to
27comply with procedures that is not justified.
   28f.  A process for monitoring the chain of custody of an
29electronic recording.
   303.  The rules adopted under subsection 2, paragraph “a”, for
31video recordings must contain standards for the angle, focus,
32and field of vision of a recording device which reasonably
33promote an accurate recording of a custodial interrogation at a
34place of detention and a reliable assessment of its accuracy
35and completeness.
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1   Sec. 15.  NEW SECTION.  823.15  Self-authentication.
   21.  In any pretrial or post-trial proceeding, an electronic
3recording of a custodial interrogation is self-authenticating
4if it is accompanied by a certificate of authenticity sworn
5under oath or affirmation by the appropriate law enforcement
6officer.
   72.  This chapter shall not limit the right of an individual
8to challenge the authenticity of an electronic recording of a
9custodial interrogation under the laws of this state other than
10as provided in this chapter.
11   Sec. 16.  NEW SECTION.  823.16  Right to electronic recording
12or transcript.
   131.  This chapter shall not create a right of an individual
14to require a custodial interrogation to be recorded
15electronically.
   162.  This chapter shall not require preparation of a
17transcript of an electronic recording of a custodial
18interrogation.
19   Sec. 17.  NEW SECTION.  823.17  Relation to Electronic
20Signatures in Global and National Commerce Act.
   21This chapter modifies, limits, or supersedes the federal
22Electronic Signatures in Global and National Commerce Act, 15
23U.S.C.§7001 et seq., but does not modify, limit, or supersede
24section 101(c) of that Act, 15 U.S.C.§7001(c), or authorize
25electronic delivery of any of the notices described in section
26103(b) of that Act, 15 U.S.C.§7003(b).
27   Sec. 18.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection
283, shall not apply to this Act.
29EXPLANATION
30The inclusion of this explanation does not constitute agreement with
31the explanation’s substance by the members of the general assembly.
   32This bill relates to electronic recordings of custodial
33interrogations in criminal or juvenile cases.
   34Under the bill, a custodial interrogation at a place of
35detention, including the giving of any required warning,
-7-1advice of the rights of the individual being questioned, and
2the waiver of any rights by the individual, must be recorded
3electronically in its entirety by both audio and video means if
4the interrogation relates to any crime or delinquent act.
   5The bill defines “custodial interrogation” to mean
6questioning or other conduct by a law enforcement officer which
7is reasonably likely to elicit an incriminating response from
8an individual and occurs when reasonable individuals in the
9same circumstances would consider themselves in custody.
   10The bill defines “place of detention” to mean a fixed
11location under the control of a law enforcement agency where
12individuals are questioned about alleged crimes or delinquent
13acts. The term includes a jail, police or sheriff’s station,
14a law enforcement officer’s vehicle, holding cell, and
15correctional or detention facility.
   16The bill does not require a law enforcement officer to
17obtain consent or inform the person being interrogated that the
18interrogation is being electronically recorded.
   19The bill does not apply to a spontaneous statement made
20outside the course of the custodial interrogation or a
21statement made in response to a question asked routinely during
22the processing of the arrest of an individual.
   23The requirements of the bill also do not apply to
24the following situations: if the electronic recording
25is not reasonably feasible under the circumstances, the
26individual refuses to participate in the interrogation
27if the interrogation is being recorded, the interrogation
28occurs in another jurisdiction in compliance with the other
29jurisdiction’s laws or by federal law enforcement in compliance
30with federal law, the law enforcement officer has no knowledge
31of the facts that would lead the officer to reasonably believe
32that the individual being interrogated committed an act which
33would require the interrogation to be electronically recorded,
34the law enforcement officer conducting the interrogation
35reasonably believes the electronic recording would disclose
-8-1the identity of a confidential informant or jeopardize the
2safety of an officer or another individual, or the electronic
3recording equipment fails.
   4If feasible under the circumstances, the bill requires the
5reason for not electronically recording an interrogation to be
6contemporaneously electronically recorded.
   7The bill prohibits a law enforcement officer from
8encouraging an individual to request an interrogation not be
9electronically recorded.
   10If the prosecution relies on an exception to not
11electronically record an interrogation, the bill specifies that
12the burden is on the prosecution to prove by a preponderance of
13the evidence that an exception does apply.
   14The bill requires the prosecution to provide written notice
15to a defendant of the intent to rely upon a statement made in a
16custodial interrogation which was not electronically recorded
17within 40 days of arraignment.
   18The bill specifies that the court shall consider the
19failure to electronically record all or part of a custodial
20interrogation, unless an exception applies, as a factor in
21determining whether a statement made during the interrogation
22is admissible, including whether the statement was voluntarily
23made.
   24The bill requires a law enforcement agency to establish and
25enforce procedures to ensure that the electronic recording is
26identifiable, accessible, and preserved for a period of three
27years after the date of the limitation for the commencement of
28a criminal action as set forth in Code chapter 802.
   29The bill requires a law enforcement agency to establish
30rules relating to the following: the manner in which an
31electronic recording is made including the angle and focus
32of the camera, supervisory responsibilities, a process
33that details when noncompliance with procedures occurs, the
34imposition of administrative sanctions for a failure to comply
35with the procedures, and a process for monitoring the chain of
-9-1custody of an electronic recording.
   2The bill does not create a right that requires a custodial
3interrogation to be recorded electronically or require a
4transcript of an electronically recorded interrogation to be
5prepared.
   6The bill may include a state mandate as defined in Code
7section 25B.3. The bill makes inapplicable Code section 25B.2,
8subsection 3, which would relieve a political subdivision from
9complying with a state mandate if funding for the cost of
10the state mandate is not provided or specified. Therefore,
11political subdivisions are required to comply with any state
12mandate included in the bill.
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