HB 681

1	A bill to be entitled
2	An act relating to electronic recording of custodial
3	interrogations; providing definitions; providing that
4	statements made during custodial interrogations are
5	presumed to be inadmissible in court unless an electronic
6	recording is made; providing requirements for such
7	recordings; providing for rebutting the presumption of
8	inadmissibility for certain nonrecorded statements;
9	providing exceptions for certain statements; providing for
10	use of statements for impeachment purposes; providing for
11	preservation of recordings; providing a finding of
12	important state 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 which is reasonably likely to
23	elicit an incriminating response.
24	(b)  "Electronic recording" means a reproduction of a
25	custodial interrogation and may be created by motion picture,
26	videotape, audiotape, or digital or other media.
27	(2)  A statement made by a person during a custodial
28	interrogation shall be presumed to be inadmissible as evidence
29	against that person in a criminal proceeding unless:
30	(a)  An electronic recording is made of the custodial
31	interrogation.
32	(b)  The recording is substantially accurate and not
33	intentionally altered.
34	(c)  Prior to the statement, but during the electronic
35	recording, the person is given all constitutionally required
36	warnings and the person knowingly, intelligently, and
37	voluntarily waives any rights set out in the warnings which
38	would otherwise preclude the admission of the statement absent
39	the waiver of those rights.
40	(d)  The electronic recording device was capable of making
41	a true, complete, and accurate recording of the interrogation,
42	the operator of such device was competent, and the electronic
43	recording has not been altered.
44	(e)  All voices that are material to the custodial
45	interrogation are identified on the electronic recording.
46	(f)  During discovery pursuant to Rule 3.220, Florida Rules
47	of Criminal Procedure, but in no circumstances later than the
48	20th day before the date of the proceeding in which the
49	prosecution intends to offer the statement, the defense is
50	provided with a true, complete, and accurate copy of all
51	electronic recordings of the defendant made pursuant to this
52	section.
53	(3)  If the court finds, by a preponderance of the
54	evidence, that the defendant was subjected to a custodial
55	interrogation in violation of this section, any statements made
56	by the defendant during or following that nonrecorded custodial
57	interrogation, even if otherwise in compliance with this
58	section, are presumed to be inadmissible in any criminal
59	proceeding against the defendant except for the purposes of
60	impeachment.
61	(4)(a)  In the absence of a true, complete, and accurate
62	electronic recording, the prosecution may rebut a presumption of
63	inadmissibility through clear and convincing evidence that:
64	1.  The statement was both voluntary and reliable.
65	2.  Law enforcement officers had good cause not to
66	electronically record all or part of the interrogation.
67	(b)  As used in paragraph (a), "good cause" includes, but
68	is not limited to, the following circumstances:
69	1.  The person refused to have the interrogation
70	electronically recorded and such refusal was electronically
71	recorded;
72	2.  The failure to electronically record an entire
73	interrogation was the result of equipment failure and obtaining
74	replacement equipment was not feasible; or
75	3.  The statement was obtained in the course of electronic
76	eavesdropping that was being conducted pursuant to a properly
77	obtained and issued warrant or that required no warrant.
78	(5)  This section does not apply to a statement made by the
79	person:
80	(a)  At the person's trial or other hearing held in open
81	court.
82	(b)  Before a grand jury.
83	(c)  Which is the res gestae of the arrest or the offense.
84	(d)  Which is a spontaneous statement that was not made in
85	response to a question.
86	(e)  During questioning that is routinely asked during the
87	processing of the arrest of a person.
88	(f)  Which does not arise from a custodial interrogation,
89	as defined by this section.
90	(g)  Which was obtained in another state by investigative
91	personnel of such state, acting independently of law enforcement
92	personnel of this state, in compliance with the laws of such
93	state.
94	(h)  Which was obtained by a federal officer in this state
95	or another state during a lawful federal investigation and was
96	obtained in compliance with the laws of the United States.
97	(6)  This section does not preclude the admission of a
98	statement, otherwise inadmissible under this section, which is
99	used only for impeachment and not as substantive evidence.
100	(7)  Each electronic recording of a custodial interrogation
101	made pursuant to this section must be preserved until the
102	person's conviction for any offense relating to the
103	interrogation is final and all direct appeals and collateral
104	challenges are exhausted, the prosecution of such offenses is
105	barred by law, or the state irrevocably waives in writing any
106	future prosecution of the person for any offense relating to the
107	interrogation.
108	Section 2.  The Legislature finds that many innocent
109	persons are imprisoned and later released due to false
110	confessions; there are many reasons innocent people confess
111	ranging from coercion to mental illness; electronic recording of
112	interrogations protects the innocent and provides the best
113	evidence against the guilty; a number of other states and local
114	jurisdictions now require recording of interrogations; and the
115	benefits of electronic recording of interrogations outweigh its
116	cost. Therefore, the Legislature determines and declares that
117	this act fulfills an important state interest.
118	Section 3.  This act shall take effect July 1, 2006.

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