Senate Bill sb0770

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    Florida Senate - 2006                                   SB 770

    By Senator Wilson





    33-334-06

  1                      A bill to be entitled

  2         An act relating to recording custodial

  3         interrogations; providing definitions;

  4         providing that statements made during custodial

  5         interrogations are presumed to be inadmissible

  6         in court unless an electronic recording is

  7         made; providing requirements for such

  8         recordings; providing for rebutting the

  9         presumption of inadmissibility for certain

10         nonrecorded statements; providing exceptions

11         for certain statements; providing for use of

12         statements for impeachment purposes; providing

13         for preservation of recordings; providing a

14         finding of important state interest; providing

15         an effective date.

16  

17  Be It Enacted by the Legislature of the State of Florida:

18  

19         Section 1.  Custodial interrogations; recording.--

20         (1)  As used in this section, the term:

21         (a)  "Custodial interrogation" means any interrogation

22  during which:

23         1.  A reasonable person in the subject's position would

24  consider himself or herself to be in custody.

25         2.  A question is asked which is reasonably likely to

26  elicit an incriminating response.

27         (b)  "Electronic recording" means a reproduction of a

28  custodial interrogation and may be created by motion picture,

29  videotape, audiotape, or digital or other media.

30  

31  

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    Florida Senate - 2006                                   SB 770
    33-334-06




 1         (2)  A statement made by a person during a custodial

 2  interrogation shall be presumed to be inadmissible as evidence

 3  against that person in a criminal proceeding unless:

 4         (a)  An electronic recording is made of the custodial

 5  interrogation.

 6         (b)  The recording is substantially accurate and not

 7  intentionally altered.

 8         (c)  Prior to the statement, but during the electronic

 9  recording, the person is given all constitutionally required

10  warnings and the person knowingly, intelligently, and

11  voluntarily waives any rights set out in the warnings which

12  would otherwise preclude the admission of the statement absent

13  the waiver of those rights.

14         (d)  The electronic recording device was capable of

15  making a true, complete, and accurate recording of the

16  interrogation, the operator of such device was competent, and

17  the electronic recording has not been altered.

18         (e)  All voices that are material to the custodial

19  interrogation are identified on the electronic recording.

20         (f)  During discovery pursuant to Rule 3.220, Florida

21  Rules of Criminal Procedure, but in no circumstances later

22  than the 20th day before the date of the proceeding in which

23  the prosecution intends to offer the statement, the defense is

24  provided with a true, complete, and accurate copy of all

25  electronic recordings of the defendant made pursuant to this

26  section.

27         (3)  If the court finds, by a preponderance of the

28  evidence, that the defendant was subjected to a custodial

29  interrogation in violation of this section, any statements

30  made by the defendant during or following that nonrecorded

31  custodial interrogation, even if otherwise in compliance with

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    Florida Senate - 2006                                   SB 770
    33-334-06




 1  this section, are presumed to be inadmissible in any criminal

 2  proceeding against the defendant except for the purposes of

 3  impeachment.

 4         (4)(a)  In the absence of a true, complete, and

 5  accurate electronic recording, the prosecution may rebut a

 6  presumption of inadmissibility through clear and convincing

 7  evidence that:

 8         1.  The statement was both voluntary and reliable.

 9         2.  Law enforcement officers had good cause not to

10  electronically record all or part of the interrogation.

11         (b)  As used in paragraph (a), "good cause" includes,

12  but is not limited to, the following circumstances:

13         1.  The person refused to have the interrogation

14  electronically recorded and such refusal was electronically

15  recorded;

16         2.  The failure to electronically record an entire

17  interrogation was the result of equipment failure and

18  obtaining replacement equipment was not feasible; or

19         3.  The statement was obtained in the course of

20  electronic eavesdropping that was being conducted pursuant to

21  a properly obtained and issued warrant or that required no

22  warrant.

23         (5)  This section does not apply to a statement made by

24  the person:

25         (a)  At the person's trial or other hearing held in

26  open court.

27         (b)  Before a grand jury.

28         (c)  Which is the res gestae of the arrest or the

29  offense.

30         (d)  Which is a spontaneous statement that was not made

31  in response to a question.

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    Florida Senate - 2006                                   SB 770
    33-334-06




 1         (e)  During questioning that is routinely asked during

 2  the processing of the arrest of a person.

 3         (f)  Which does not arise from a custodial

 4  interrogation, as defined by this section.

 5         (g)  Which was obtained in another state by

 6  investigative personnel of such state, acting independently of

 7  law enforcement personnel of this state, in compliance with

 8  the laws of such state.

 9         (h)  Which was obtained by a federal officer in this

10  state or another state during a lawful federal investigation

11  and was obtained in compliance with the laws of the United

12  States.

13         (6)  This section does not preclude the admission of a

14  statement, otherwise inadmissible under this section, which is

15  used only for impeachment and not as substantive evidence.

16         (7)  Each electronic recording of a custodial

17  interrogation made pursuant to this section must be preserved

18  until the person's conviction for any offense relating to the

19  interrogation is final and all direct appeals and collateral

20  challenges are exhausted, the prosecution of such offenses is

21  barred by law, or the state irrevocably waives in writing any

22  future prosecution of the person for any offense relating to

23  the interrogation.

24         Section 2.  The Legislature finds that many innocent

25  persons are imprisoned and later released due to false

26  confessions; there are many reasons innocent people confess

27  ranging from coercion to mental illness; electronic recording

28  of interrogations protects the innocent and provides the best

29  evidence against the guilty; a number of other states and

30  local jurisdictions now require recording of interrogations;

31  and the benefits of electronic recording of interrogations

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    Florida Senate - 2006                                   SB 770
    33-334-06




 1  outweigh its cost. Therefore, the Legislature determines and

 2  declares that this act fulfills an important state interest.

 3         Section 3.  This act shall take effect July 1, 2006.

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 6                          SENATE SUMMARY

 7    Provides that statements made during custodial
      interrogations are presumed to be inadmissible in court
 8    unless an electronic recording is made. Provides
      requirements for such recordings. Provides for rebutting
 9    the presumption of inadmissibility for certain
      nonrecorded statements. Provides exceptions for certain
10    statements. Provides for the use of statements for
      impeachment purposes. Provides requirements for
11    preserving recordings.

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