Introduced Version






HOUSE BILL No. 1302

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-33-3.5.

Synopsis: Custodial interrogation recording. Provides that a statement made by a defendant during a custodial interrogation conducted by a state or local law enforcement agency is inadmissible as evidence (subject to certain exceptions) in a felony prosecution unless a video recording of the statement was made and other requirements are met. Requires law enforcement agencies to retain copies of custodial interrogation recordings for certain periods.

Effective: July 1, 2008.





Lawson L, Soliday




    January 15, 2008, read first time and referred to Committee on Judiciary.







Introduced

Second Regular Session 115th General Assembly (2008)


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HOUSE BILL No. 1302



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-33-3.5; (08)IN1302.1.1. -->     SECTION 1. IC 35-33-3.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]:
     Chapter 3.5. Recording of Custodial Interrogations
    Sec. 1. As used in this chapter, "audio recording" means a recording of sounds by using electronic recording equipment.
    Sec. 2. As used in this chapter, "custodial interrogation" means an interrogation conducted by a law enforcement agency during which:
        (1) a reasonable person being interrogated would consider himself or herself to be in custody; and
        (2) a question is asked that is reasonably likely to elicit an incriminating response from the person.
    Sec. 3. As used in this chapter, "law enforcement agency" means an agency or a department of any level of state or local government whose principal function is the apprehension of criminal offenders.
    Sec. 4. As used in this chapter, "place of detention" means:
        (1) a law enforcement agency station house; or
        (2) any other building owned or operated by the law enforcement agency;
at which persons are detained in connection with criminal investigations.
    Sec. 5. As used in this chapter, "video recording" means a recording of visual images and sounds by using electronic recording equipment.
    Sec. 6. (a) Except as provided in subsection (b), a statement made by a defendant during a custodial interrogation is inadmissible as evidence against the defendant in a felony proceeding unless the following conditions are met:
        (1) A complete video recording is made of the statement.
        (2) The video recording of the defendant's statement discloses that
the defendant:
            (A) was advised of; and
            (B) knowingly, intelligently, and voluntarily waived;
        the defendant's rights under Miranda v. Arizona, 384 U.S. 436 (1966), before the defendant made the statement.
        (3) All of the following apply to the video recording:
            (A) The device that made the video recording was capable of making an accurate recording.
            (B) The operator was competent.
            (C) The recording is accurate and unaltered.
            (D) The interrogator and the person being interrogated in the video recording had a camera focused simultaneously upon them during the recording.
        (4) All voices on the video recording that are material to the custodial interrogation can be identified.
        (5) Not later than twenty (20) days before trial, the attorney representing the defendant is provided with a true, complete, and accurate copy of every video recording of the defendant.
    (b) If any part of a custodial interrogation takes place outside a place of detention, a law enforcement agency shall make an audio recording of the custodial interrogation and shall state in the audio recording why a video recording cannot be made.
    Sec. 7. A law enforcement agency shall retain a copy of a custodial interrogation of a person recorded under this chapter until:

         (1) if the person is convicted of a felony, the:
            (A) person's conviction is final; and
            (B) person has exhausted all direct and habeas corpus

appeals related to the conviction; or
        (2) a prosecution of the person for a crime or delinquent act for which the person was interrogated is barred by law.

     Sec. 8. (a) A custodial interrogation recorded under this chapter is:
        (1) confidential; and
        (2) exempt from disclosure under IC 5-14-3.
    (b) This section does not preclude:
        (1) the state or a defendant in a felony action from obtaining a copy of a custodial interrogation recorded under this chapter for use in:
            (A) a criminal action; or
            (B) an appeal related to the criminal action; or
        (2) a party in a civil suit from obtaining a copy of a custodial interrogation recorded under this chapter for use in:
            (A) a civil suit; or
            (B) an appeal related to a civil suit.
    Sec. 9.
(a) If a court finds by a preponderance of the evidence that a custodial interrogation of a suspect in a felony investigation did not meet the conditions set forth in section 6(a) of this chapter, any statements made by the suspect during or following the interrogation are inadmissible in a prosecution against the suspect.
    (b) This chapter does not preclude the admission into evidence in any action of the following:
        (1) A statement made by a defendant:
            (A) in open court at the defendant's trial;
            (B) before a grand jury; or
            (C) at a preliminary hearing.
        (2) A statement made during a custodial interrogation that was not recorded as provided in section 6(a) of this chapter because video recording was not feasible.
        (3) A voluntary statement, whether or not the result of a custodial interrogation, that has a bearing on the credibility of a person as a witness.
        (4) A spontaneous statement that is not made in response to a question.
        (5) A statement made after questioning that is routinely asked during the processing of the arrest of a suspect.
        (6) A statement made during a custodial interrogation by a suspect who requests, before making the statement, that the statement not be recorded. However, the suspect's request under this subdivision must be recorded.


        (7) A statement made during a custodial interrogation that is conducted outside Indiana.
        (8) A statement concerning a murder given at a time when the interrogator is not aware that a murder has occurred.
        (9) Any other statement that may be admissible under law.
The state has the burden of proving by a preponderance of the evidence that a statement is admissible into evidence under this subsection.