HB 1119

1	A bill to be entitled
2	An act relating to recording custodial interrogations;
3	providing definitions; providing that statements made
4	during custodial interrogations are presumed to be
5	inadmissible in court unless an electronic recording is
6	made; providing requirements for such recordings;
7	providing for rebutting the presumption of inadmissibility
8	for certain nonrecorded statements; providing exceptions
9	for certain statements; providing for use of statements
10	for impeachment purposes; providing for preservation of
11	recordings; providing a finding of important state
12	interest; providing an effective date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1.  Custodial interrogations; recording.--
17	(1)  As used in this section, the term:
18	(a)  "Custodial interrogation" means any interrogation
19	during which:
20	1.  A reasonable person in the subject's position would
21	consider himself or herself to be in custody.
22	2.  A question is asked that is reasonably likely to elicit
23	an incriminating response.
24	(b)  "Place of detention" means a building or a police
25	station that is a place of operation for a police department,
26	sheriff's department, or other law enforcement agency, other
27	than a courthouse, that is owned or operated by a law
28	enforcement agency at which persons are or may be held in
29	detention in connection with criminal charges against those
30	persons.
31	(c)  "Electronic recording" means a reproduction of a
32	custodial interrogation and may be created by motion picture,
33	videotape, audiotape, or digital or other media.
34	(2)  A statement made by a person during a custodial
35	interrogation shall be presumed to be inadmissible as evidence
36	against that person in a criminal proceeding unless:
37	(a)  An electronic recording is made of the custodial
38	interrogation.
39	(b)  The recording is substantially accurate and not
40	intentionally altered.
41	(c)  Prior to the statement, but during the electronic
42	recording, the person is given all constitutionally required
43	warnings and the person knowingly, intelligently, and
44	voluntarily waives any rights set out in the warnings that would
45	otherwise preclude the admission of the statement absent the
46	waiver of those rights.
47	(d)  The electronic recording device was capable of making
48	a true, complete, and accurate recording of the interrogation,
49	the operator of such device was competent, and the electronic
50	recording has not been altered.
51	(e)  All voices that are material to the custodial
52	interrogation are identified on the electronic recording.
53	(f)  During discovery pursuant to Rule 3.220, Florida Rules
54	of Criminal Procedure, but in no circumstances later than the
55	20th day before the date of the proceeding in which the
56	prosecution intends to offer the statement, the defense is
57	provided with a true, complete, and accurate copy of all
58	electronic recordings of the defendant made pursuant to this
59	section.
60	(3)  If the court finds, by a preponderance of the
61	evidence, that the defendant was subjected to a custodial
62	interrogation in violation of this section, any statements made
63	by the defendant during or following that nonrecorded custodial
64	interrogation, even if otherwise in compliance with this
65	section, are presumed to be inadmissible in any criminal
66	proceeding against the defendant except for the purposes of
67	impeachment.
68	(4)(a)  In the absence of a true, complete, and accurate
69	electronic recording, the prosecution may rebut a presumption of
70	inadmissibility through clear and convincing evidence that:
71	1.  The statement was both voluntary and reliable.
72	2.  Law enforcement officers had good cause not to
73	electronically record all or part of the interrogation.
74	(b)  For purposes of paragraph (a), "good cause" includes,
75	but is not limited to, the following:
76	1.  The person refused to have the interrogation
77	electronically recorded and such refusal was electronically
78	recorded;
79	2.  The failure to electronically record an entire
80	interrogation was the result of equipment failure and obtaining
81	replacement equipment was not feasible; or
82	3.  The statement was obtained in the course of electronic
83	eavesdropping that was being conducted pursuant to a properly
84	obtained and issued warrant or that required no warrant.
85	(5)  This section does not apply to a statement made by the
86	person:
87	(a)  At the person's trial or other hearing held in open
88	court.
89	(b)  Before a grand jury.
90	(c)  That is the res gestae of the arrest or the offense.
91	(d)  That is a spontaneous statement that was not made in
92	response to a question.
93	(e)  During questioning that is routinely asked during the
94	processing of the arrest of a person.
95	(f)  That does not arise from a custodial interrogation, as
96	defined by this section.
97	(g)  That was obtained in another state by investigative
98	personnel of such state, acting independently of law enforcement
99	personnel of this state, in compliance with the laws of such
100	state.
101	(h)  That was obtained by a federal officer in this state
102	or another state during a lawful federal investigation and was
103	obtained in compliance with the laws of the United States.
104	(6)  Nothing in this section precludes the admission of a
105	statement, otherwise inadmissible under this section, that is
106	used only for impeachment and not as substantive evidence.
107	(7)  Every electronic recording of a custodial
108	interrogation made pursuant to this section must be preserved
109	until the person's conviction for any offense relating to the
110	interrogation is final and all direct appeals and collateral
111	challenges are exhausted, the prosecution of such offenses is
112	barred by law, or the state irrevocably waives in writing any
113	future prosecution of the person for any offense relating to the
114	interrogation.
115	Section 2.  The Legislature finds that many innocent
116	persons are imprisoned and later released due to false
117	confessions; there are many reasons innocent people confess
118	ranging from coercion to mental illness; electronic recording of
119	interrogations protects the innocent and provides the best
120	evidence against the guilty; a number of other states and local
121	jurisdictions now require recording of interrogations; and the
122	benefits of electronic recording of interrogations outweigh its
123	cost. Therefore, the Legislature determines and declares that
124	this act fulfills an important state interest.
125	Section 3.  This act shall take effect July 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.