Bill Text: IA SF44 | 2019-2020 | 88th General Assembly | Introduced

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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) 2019-01-16 - Subcommittee: Dawson, Kinney, and Sweeney. S.J. 110. [SF44 Detail]

Download: Iowa-2019-SF44-Introduced.html

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