California has a statute requiring recording of custodial interrogations.
Citation: Cal. Penal Code § 859.5 (2017).
General rule: “[A] custodial interrogation of any person, including an adult or a minor, who is in a fixed place of detention, and suspected of committing murder . . . shall be electronically recorded in its entirety.” § 859.5(a).
Circumstances that excuse recording: Law enforcement officers are not required to electronically record a custodial interrogation of a person suspected of murder when: 1) “[e]lectronic recording is not feasible”; 2) the “person to be interrogated states that he or she will speak to a law enforcement officer only if the interrogation is not electronically recorded”; 3) the “custodial interrogation occurred in another jurisdiction and was conducted by law enforcement officers of that jurisdiction in compliance with the law of that jurisdiction, unless the interrogation was conducted with intent to avoid the requirements of this section”; 4) the “interrogation occurs when no law enforcement officer conducting the interrogation has knowledge of facts and circumstances that would lead an officer to reasonably believe that the individual being interrogated may have committed murder”; 5) the “law enforcement officer conducting the interrogation or the officer's superior reasonably believes that electronic recording would disclose the identity of a confidential informant or jeopardize the safety of an officer, the individual being interrogated, or another individual”; 6) the “failure to create an electronic recording of the entire custodial interrogation was the result of a malfunction of the recording device”; 7) the “questions presented to a person by law enforcement personnel and the person’s responsive statements were part of a routine processing or booking of that person”; or 8) the interrogation is “of a person who is in custody on a charge of a violation of Section 187 or 189 of [the California Penal Code] or paragraph (1) of subdivision (b) of Section 707 of the Welfare and Institutions Code if the interrogation is not related to any of these offenses.” § 859.5(b).
Consequences of unexcused failure to record: If law enforcement officers fail to comply with California’s recording statute during a custodial interrogation, that failure “shall be considered by the court in adjudicating motions to suppress a statement of [the] defendant made during or after a custodial interrogation,” and “shall be admissible in support of claims that [the] defendant’s statement was involuntary or is unreliable, provided the evidence is otherwise admissible.” § 859.5(e). Further, “the court shall provide the jury with an instruction, to be developed by the Judicial Council, that advises the jury to view with caution the statements made in that custodial interrogation.” § 859.5(e).
Preservation: “The interrogating entity shall maintain the original or an exact copy of an electronic recording made of a custodial interrogation until a conviction for any offense relating to the interrogation is final and all direct and habeas corpus appeals are exhausted or the prosecution for that offense is barred by law or, in a juvenile court proceeding, as otherwise provided in subdivision (b) of Section 626.8 of the Welfare and Institutions Code. The interrogating entity may make one or more true, accurate, and complete copies of the electronic recording in a different format.” § 859.5(f).
The California Commission on the Fair Administration of Justice was formed in 2004 pursuant to a resolution of the state Senate, to study the administration of criminal justice in California, and to make recommendations designed to ensure that the application and administration of criminal justice in California is just, fair and accurate. The members were persons from all sides of the criminal justice system. The Commission held public and private meetings, and rendered a series of interim reports for improvements in the California criminal justice system. The Commission ended its work with a final report in August 2008.
The Commission recommended that a statute be enacted requiring law enforcement agents to record custodial interrogations when interrogating persons suspected of committing serious felonies. The Commission report states:
There are a number of reasons why the taping of interrogations actually benefits the police departments that require it. First, taping creates an objective, comprehensive record of the interrogation. Second, taping leads to the improved quality of interrogation, with a higher level of scrutiny that will deter police misconduct and improve the quality of interrogation practices. Third, taping provides the police protection against false claims of police misconduct. Finally, with taping, detectives, police managers, prosecutors, defense attorneys and judges are able to more easily detect false confessions and more easily prevent their admission into evidence.
Pursuant to the Commission’s recommendation, the Assembly twice passed and sent Governor Schwarzenegger two different bills, one in 2006 and a revised bill in 2007, both of which would have required that law enforcement officers electronically record custodial interrogations of persons suspected of homicides or violent felonies. Governor Schwarzenegger vetoed the 2006 bill (SB171) because it “[did] not specify what suspected means.”
The Commission then recommended a revised bill which contained a definition of the words “suspected of.” In February 2007, the revised bill was introduced in the Senate as SB 511, which provided that any custodial interrogation that takes place in a fixed place of detention of a person suspected or accused of homicide or a violent felony as defined in the Penal Code should “be electronically recorded in its entirety.” § 2(a). The recording was to be by audio, although videotape was encouraged if the person was suspected or accused of homicide. § 2(c)(2). The provision was inapplicable if the person agreed to speak only if not recorded; or if recording was not feasible, for example, because recording equipment could not be obtained; the equipment malfunctioned; the equipment was inadvertently operated improperly; the interrogation took place in another jurisdiction in compliance with its law; or exigent circumstances existed which prevented the making of a recording. §§ 2(a)(2), 2(b)(1)-(7). Provisions were made for preservation of recordings. § 2(a)(3). Both the Senate and House passed SB 511, and sent it to Governor Schwarzenegger, who vetoed the bill in October 2007. Governor Schwarzenegger’s 2007 veto message read in its entirety:
I am returning SB 511 without my signature. While reducing the number of false confessions is a laudable goal, I cannot support a measure that would deny law enforcement the flexibility necessary to interrogate suspects in homicide and violent felony cases when the need to do so is not clear. Police interrogations are dynamic processes that require investigators to use acumen, skill and experience to determine which methods of interrogations are best for the situation. This bill would place unnecessary restrictions on police investigators.
The reason Governor Schwarzenegger gave for his veto in 2007 was neither correct nor appropriate. SB 511 would have placed no restrictions whatsoever on law enforcement officers conducting custodial interrogations. The bill contained exceptions that adequately excused recordings, which have proven acceptable in the other states that have compulsory recording statutes and court rules.
Governor Schwarzenegger appeared to be saying – although in carefully selected terms but which carry a clear implication and subtext – that some California law enforcement officers may use “methods of interrogation” during custodial interrogations that they do not want disclosed in contemporaneous recordings, and by logical extension in their written reports and courtroom testimony. This basis for rejecting recording legislation sullied the reputations of the many honorable California detectives and their supervisors. They are required to make accurate and complete written reports of what occurs during custodial interviews, and to give honest and complete courtroom testimony. They take a solemn oath to tell the truth, the whole truth, and nothing but the truth as to what was said and done during the closed-door sessions, including candid, unvarnished, accurate descriptions of the “methods of interrogation” they used. Those who file false official reports, or commit perjury, and those who encourage or participate knowingly in these practices, may violate the California Penal Code: § 31- aid, abet, advise, encourage or command another’s crime; § 118 - perjury; § 118.1- false statements in peace officer’s crime reports; § 127 - subornation of perjury.
There is another sad side to Governor Schwarzenegger’s vetoes. The large number of California police and sheriff departments (some named below) that voluntarily record their custodial interrogations illustrates a widespread recognition on the part of California law enforcement of the value that result from adherence to the practice, with no restrictions placed upon their use of lawful, appropriate interrogation methods.
In 2013, the California Legislature passed, and Governor Brown signed, a law that “require[d] electronic recording of custodial interrogations of juveniles,” after finding that “[r]ecording interrogations decreases wrongful convictions based on false confessions and enhances public confidence in the criminal process. Properly recorded interrogations provide the best evidence of the communications that occurred during an interrogation, prevent disputes about how an officer conducted himself or herself or treated a suspect during the course of an interrogation, prevent a defendant from lying about the account of events he or she originally provided to law enforcement, and spare judges and jurors the time necessary and the need to assess which account of an interrogation to believe.” Interrogation—Children and Minors—Electronic Recordation, 2013 Cal. Legis. Serv. Ch. 799 (S.B. 569) (West).
In 2016, the California Legislature altered the 2013 recording law to “make [the] electronic recording requirement applicable to the custodial interrogation of any person suspected of committing murder.” Interrogation—Electronic Recordings, 2016 Cal. Legis. Serv. Ch. 791 (S.B. 1389) (West) (emphasis added). The new law became effective January 1, 2017, and is codified in § 859.5 of the California Penal Code.
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