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.
 4  
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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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