Bill Text: IA SF2024 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to recording custodial interrogations in a criminal or juvenile case.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-11 - Subcommittee: Shipley, Bisignano, and Sinclair. S.J. 98. [SF2024 Detail]
Download: Iowa-2017-SF2024-Introduced.html
Senate File 2024 - Introduced SENATE FILE BY BOLKCOM A BILL FOR 1 An Act relating to recording custodial interrogations in a 2 criminal or juvenile case. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 5356XS (3) 87 jm/rh PAG LIN 1 1 Section 1. NEW SECTION. 823.1 Definitions. 1 2 As used in this chapter, unless the context otherwise 1 3 requires: 1 4 1. "Custodial interrogation" means questioning or other 1 5 conduct by a law enforcement officer which is reasonably likely 1 6 to elicit an incriminating response from an individual and 1 7 occurs when reasonable individuals in the same circumstances 1 8 would consider themselves in custody. 1 9 2. "Electronic recording" means an audio and video 1 10 recording that accurately records a custodial interrogation. 1 11 "Record electronically" and "recorded electronically" have a 1 12 corresponding meaning. 1 13 3. "Law enforcement agency" means a governmental entity 1 14 or other entity authorized by a governmental entity or state 1 15 law to enforce criminal laws or investigate suspected criminal 1 16 activity. The term does not include a law enforcement officer. 1 17 4. "Law enforcement officer" means an individual employed 1 18 by a law enforcement agency whose responsibilities include 1 19 enforcing criminal laws or investigating suspected criminal 1 20 activity, including but not limited to a peace officer as 1 21 defined in section 801.4 and a reserve officer as defined in 1 22 section 80D.1A. 1 23 5. "Place of detention" means a fixed location under the 1 24 control of a law enforcement agency where individuals are 1 25 questioned about alleged crimes or delinquent acts. The term 1 26 includes a jail, police or sheriff's station, a law enforcement 1 27 officer's vehicle, holding cell, and correctional or detention 1 28 facility. 1 29 6. "Statement" means a communication whether oral, written, 1 30 electronic, or nonverbal. 1 31 Sec. 2. NEW SECTION. 823.2 Electronic recording 1 32 requirement. 1 33 1. Except as provided in sections 823.4 through 823.9, 1 34 a custodial interrogation at a place of detention, including 1 35 the giving of any required warning, advice of the rights of 2 1 the individual being questioned, and the waiver of any rights 2 2 by the individual, shall be recorded electronically in its 2 3 entirety by both audio and video means if the interrogation 2 4 relates to any crime or delinquent act. 2 5 2. If subsection 1 applies and a law enforcement officer 2 6 conducts a custodial interrogation without electronically 2 7 recording the interrogation in its entirety, the officer 2 8 shall prepare a written or electronic report explaining the 2 9 reason for not complying with this section and summarizing 2 10 the custodial interrogation process and the individual's 2 11 statements. 2 12 3. A law enforcement officer shall prepare the report 2 13 required by subsection 2 as soon as practicable after 2 14 completing the custodial interrogation. 2 15 Sec. 3. NEW SECTION. 823.3 Notice and consent not required. 2 16 A law enforcement officer conducting a custodial 2 17 interrogation is not required to obtain consent to electronic 2 18 recording from the individual being interrogated or to 2 19 inform the individual that an electronic recording is being 2 20 made of the interrogation. This chapter does not permit 2 21 a law enforcement officer or a law enforcement agency to 2 22 record a private communication between an individual and the 2 23 individual's lawyer. 2 24 Sec. 4. NEW SECTION. 823.4 Feasibility of recording ==== 2 25 spontaneous statement exceptions. 2 26 1. A custodial interrogation is not required to be recorded 2 27 electronically pursuant to section 823.2 if the recording is 2 28 not reasonably feasible under the circumstances. The law 2 29 enforcement officer conducting the custodial interrogation 2 30 shall record electronically an explanation of the exigent 2 31 circumstances before conducting the custodial interrogation, 2 32 if feasible, or as soon as practicable after the custodial 2 33 interrogation is completed. 2 34 2. An electronic recording is not required for a spontaneous 2 35 statement made outside the course of a custodial interrogation 3 1 or a statement made in response to a question asked routinely 3 2 during the processing of an individual following an arrest. 3 3 Sec. 5. NEW SECTION. 823.5 Refusal to be electronically 3 4 recorded ==== exception. 3 5 1. A custodial interrogation is not required to be recorded 3 6 electronically pursuant to section 823.2 if the individual 3 7 to be interrogated indicates that the individual will not 3 8 participate in the interrogation if the interrogation is 3 9 recorded electronically. If feasible, the agreement to 3 10 participate without recording must be recorded electronically. 3 11 2. If, during a custodial interrogation that applies under 3 12 section 823.2, the individual being interrogated indicates that 3 13 the individual will not participate in further interrogation 3 14 unless electronic recording ceases, the remainder of the 3 15 custodial interrogation is not required to be recorded 3 16 electronically. If feasible, the individual's agreement 3 17 to participate without further recording must be recorded 3 18 electronically. 3 19 3. A law enforcement officer, with the intent to avoid the 3 20 requirement of electronic recording in section 823.2, shall 3 21 not encourage an individual to request that a recording not be 3 22 made. 3 23 Sec. 6. NEW SECTION. 823.6 Interrogation conducted by other 3 24 jurisdiction ==== exception. 3 25 If a custodial interrogation occurs in another state 3 26 in compliance with that state's law or is conducted by a 3 27 federal law enforcement agency in compliance with federal law, 3 28 the custodial interrogation is not required to be recorded 3 29 electronically unless the custodial interrogation is conducted 3 30 on behalf of an Iowa law enforcement agency with the specific 3 31 intent to avoid the requirement of electronic recording in 3 32 section 823.2. 3 33 Sec. 7. NEW SECTION. 823.7 Belief ==== exception. 3 34 1. A custodial interrogation is not required to be 3 35 recorded electronically pursuant to section 823.2 if the 4 1 custodial interrogation occurs when no law enforcement officer 4 2 conducting the custodial interrogation has knowledge of facts 4 3 and circumstances that would lead a law enforcement officer 4 4 reasonably to believe that the individual being interrogated 4 5 may have committed an act which requires that a custodial 4 6 interrogation be recorded electronically under section 823.2. 4 7 2. If, during such a custodial interrogation, the 4 8 individual being interrogated reveals facts and circumstances 4 9 giving a law enforcement officer conducting the custodial 4 10 interrogation reason to believe that an act has been 4 11 committed which requires that a custodial interrogation 4 12 be recorded electronically under section 823.2, continued 4 13 custodial interrogation concerning that act must be recorded 4 14 electronically, if feasible. 4 15 Sec. 8. NEW SECTION. 823.8 Safety ==== exception. 4 16 A custodial interrogation is not required to be recorded 4 17 electronically pursuant to section 823.2 if a law enforcement 4 18 officer conducting the custodial interrogation or the officer's 4 19 superior reasonably believes that electronic recording 4 20 would disclose the identity of a confidential informant 4 21 or jeopardize the safety of a law enforcement officer, the 4 22 individual being interrogated, or another individual. If 4 23 feasible and consistent with the safety of a confidential 4 24 informant, an explanation of the basis for the belief that 4 25 electronic recording would disclose the informant's identity 4 26 must be recorded electronically at the time of the custodial 4 27 interrogation. If contemporaneous recording of the basis for 4 28 the belief is not feasible, the recording must be made as soon 4 29 as practicable after the custodial interrogation is completed. 4 30 Sec. 9. NEW SECTION. 823.9 Equipment malfunction ==== 4 31 exception. 4 32 All or part of a custodial interrogation is not required to 4 33 be recorded electronically pursuant to section 823.2 to the 4 34 extent that recording is not feasible because the available 4 35 electronic recording equipment fails, despite reasonable 5 1 maintenance of the equipment, and timely repair or replacement 5 2 is not feasible. 5 3 Sec. 10. NEW SECTION. 823.10 Burden of proof. 5 4 If the prosecution relies on an exception described in 5 5 sections 823.4 through 823.9 to justify a failure to record 5 6 electronically a custodial interrogation, the prosecution must 5 7 prove by a preponderance of the evidence that the exception 5 8 applies. 5 9 Sec. 11. NEW SECTION. 823.11 Notice of intent to introduce 5 10 unrecorded statement. 5 11 If the prosecution intends to introduce in its case in chief 5 12 a statement made during a custodial interrogation which was 5 13 not recorded electronically and section 823.2 applies to that 5 14 statement, the prosecution, not later than the time specified 5 15 by rule of criminal procedure 2.11(4), Iowa court rules, shall 5 16 serve the defendant with written notice of that intent and of 5 17 any exception on which the prosecution intends to rely. 5 18 Sec. 12. NEW SECTION. 823.12 Procedural remedies. 5 19 1. Unless the court finds that an exception in sections 5 20 823.4 through 823.9 applies, the court shall consider the 5 21 failure to record electronically all or part of a custodial 5 22 interrogation in compliance with section 823.2 as a factor 5 23 in determining whether a statement made during the custodial 5 24 interrogation is admissible, including whether it was 5 25 voluntarily made. 5 26 2. If the court admits into evidence a statement made during 5 27 a custodial interrogation that was not recorded electronically 5 28 in compliance with section 823.2, the court, on request of the 5 29 defendant, shall give a cautionary instruction to the jury, 5 30 unless such an instruction would be confusing or not beneficial 5 31 to the jury. 5 32 Sec. 13. NEW SECTION. 823.13 Handling and preserving 5 33 electronic recording ==== spoliation. 5 34 Each law enforcement agency in this state shall establish 5 35 and enforce procedures to ensure that the electronic recording 6 1 of all or part of a custodial interrogation is identifiable, 6 2 accessible, and preserved for a period of three years after 6 3 the date of the limitation for the commencement of a criminal 6 4 action as set forth in chapter 802. 6 5 Sec. 14. NEW SECTION. 823.14 Rules relating to electronic 6 6 recording. 6 7 1. Each law enforcement agency that is a governmental entity 6 8 of this state shall adopt and enforce rules to administer this 6 9 chapter. 6 10 2. The rules adopted under subsection 1 shall address the 6 11 following: 6 12 a. The manner in which an electronic recording is made. 6 13 b. The collection and supervisory review of an electronic 6 14 recording. 6 15 c. Supervisory responsibilities imposed on individuals 6 16 in specific positions in order to ensure adequate staffing, 6 17 education, training, material resources, and a chain of command 6 18 to promote internal accountability. 6 19 d. A process that details when noncompliance with procedures 6 20 occurs. 6 21 e. The imposition of administrative sanctions for a failure 6 22 to comply with procedures that is not justified. 6 23 f. A process for monitoring the chain of custody of an 6 24 electronic recording. 6 25 3. The rules adopted under subsection 2, paragraph "a", for 6 26 video recordings must contain standards for the angle, focus, 6 27 and field of vision of a recording device which reasonably 6 28 promote accurate recording of a custodial interrogation at a 6 29 place of detention and reliable assessment of its accuracy and 6 30 completeness. 6 31 Sec. 15. NEW SECTION. 823.15 Self=authentication. 6 32 1. In any pretrial or posttrial proceeding, an electronic 6 33 recording of a custodial interrogation is self=authenticating 6 34 if it is accompanied by a certificate of authenticity sworn 6 35 under oath or affirmation by an appropriate law enforcement 7 1 officer. 7 2 2. This chapter does not limit the right of an individual 7 3 to challenge the authenticity of an electronic recording of a 7 4 custodial interrogation under the laws of this state other than 7 5 this chapter. 7 6 Sec. 16. NEW SECTION. 823.16 Right to electronic recording 7 7 or transcript. 7 8 1. This chapter does not create a right of an individual 7 9 to require a custodial interrogation to be recorded 7 10 electronically. 7 11 2. This chapter does not require preparation of a transcript 7 12 of an electronic recording of a custodial interrogation. 7 13 Sec. 17. NEW SECTION. 823.17 Relation to Electronic 7 14 Signatures in Global and National Commerce Act. 7 15 This chapter modifies, limits, and supersedes the federal 7 16 Electronic Signatures in Global and National Commerce Act, 15 7 17 U.S.C. {7001 et seq., but does not modify, limit, or supersede 7 18 section 101(a) of that Act, 15 U.S.C. {7001(a), or authorize 7 19 electronic delivery of any of the notices described in section 7 20 103(b) of that Act, 15 U.S.C. {7003(b). 7 21 Sec. 18. IMPLEMENTATION OF ACT. Section 25B.2, subsection 7 22 3, shall not apply to this Act. 7 23 EXPLANATION 7 24 The inclusion of this explanation does not constitute agreement with 7 25 the explanation's substance by the members of the general assembly. 7 26 This bill relates to electronic recordings of custodial 7 27 interrogations in criminal or juvenile cases. 7 28 Under the bill, a custodial interrogation at a place of 7 29 detention, including the giving of any required warning, 7 30 advice of the rights of the individual being questioned, and 7 31 the waiver of any rights by the individual, must be recorded 7 32 electronically in its entirety by both audio and video means if 7 33 the interrogation relates to any crime or delinquent act. 7 34 The bill defines "custodial interrogation" to mean 7 35 questioning or other conduct by a law enforcement officer which 8 1 is reasonably likely to elicit an incriminating response from 8 2 an individual and occurs when reasonable individuals in the 8 3 same circumstances would consider themselves in custody. 8 4 The bill defines "place of detention" to mean a fixed 8 5 location under the control of a law enforcement agency where 8 6 individuals are questioned about alleged crimes or delinquent 8 7 acts. The term includes a jail, police or sheriff's station, 8 8 a law enforcement officer's vehicle, holding cell, and 8 9 correctional or detention facility. 8 10 The bill does not require a law enforcement officer to 8 11 obtain consent or inform the person being interrogated that the 8 12 interrogation is being electronically recorded. 8 13 The bill does not apply to a spontaneous statement made 8 14 outside the course of the custodial interrogation or a 8 15 statement made in response to a question asked routinely during 8 16 the processing of the arrest of an individual. 8 17 The requirements of the bill also do not apply to 8 18 the following situations: the electronic recording is 8 19 not reasonably feasible under the circumstances, the 8 20 individual refuses to participate in the interrogation 8 21 if the interrogation is being recorded, the interrogation 8 22 occurs in another jurisdiction in compliance with the other 8 23 jurisdiction's laws or by federal law enforcement in compliance 8 24 with federal law, the law enforcement officer has no knowledge 8 25 of the facts that would lead the officer to reasonably believe 8 26 that the individual being interrogated committed an act which 8 27 would require the interrogation to be electronically recorded, 8 28 the law enforcement officer conducting the interrogation 8 29 reasonably believes the electronic recording would disclose 8 30 the identity of a confidential informant or jeopardize the 8 31 safety of an officer or another individual, or the electronic 8 32 recording equipment fails. 8 33 If feasible under the circumstances, the bill requires the 8 34 reason for not electronically recording an interrogation to be 8 35 contemporaneously electronically recorded. 9 1 The bill prohibits a law enforcement officer from 9 2 encouraging an individual to request an interrogation not be 9 3 electronically recorded. 9 4 If the prosecution relies on an exception to not 9 5 electronically record an interrogation, the bill specifies that 9 6 the burden is on the prosecution to prove by a preponderance of 9 7 the evidence that an exception does apply. 9 8 The bill requires the prosecution to provide written notice 9 9 to a defendant of the intent to rely upon a statement made in a 9 10 custodial interrogation which was not electronically recorded 9 11 within 40 days of arraignment. 9 12 The bill specifies that the court shall consider the 9 13 failure to electronically record all or part of a custodial 9 14 interrogation, unless an exception applies, as a factor in 9 15 determining whether a statement made during the interrogation 9 16 is admissible, including whether the statement was voluntarily 9 17 made. 9 18 The bill requires each law enforcement agency to establish 9 19 and enforce procedures to ensure that the electronic recording 9 20 is identifiable, accessible, and preserved for a period 9 21 of three years after the date of the limitation for the 9 22 commencement of a criminal action as set forth in Code chapter 9 23 802. 9 24 The bill requires each law enforcement agency to establish 9 25 rules relating to the following: the manner in which an 9 26 electronic recording is made including the angle and focus 9 27 of the camera, supervisory responsibilities, a process 9 28 that details when noncompliance with procedures occurs, the 9 29 imposition of administrative sanctions for a failure to comply 9 30 with the procedures, and a process for monitoring the chain of 9 31 custody of an electronic recording. 9 32 The bill does not create a right to require a custodial 9 33 interrogation to be recorded electronically or require a 9 34 transcript of an electronically recorded interrogation to be 9 35 prepared. 10 1 The bill may include a state mandate as defined in Code 10 2 section 25B.3. The bill makes inapplicable Code section 25B.2, 10 3 subsection 3, which would relieve a political subdivision from 10 4 complying with a state mandate if funding for the cost of 10 5 the state mandate is not provided or specified. Therefore, 10 6 political subdivisions are required to comply with any state 10 7 mandate included in the bill. LSB 5356XS (3) 87 jm/rh
