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.
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
(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
at which persons are detained in connection with criminal
Sec. 5. As used in this chapter, "video recording" means a
recording of visual images and sounds by using electronic
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
(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
(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
(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