Florida Senate - 2018 CS for SB 1220 By the Committee on Criminal Justice; and Senator Brandes 591-02131-18 20181220c1 1 A bill to be entitled 2 An act relating to custodial interrogations; creating 3 s. 900.05, F.S.; defining terms and specifying covered 4 offenses; requiring that a custodial interrogation at 5 a place of detention be electronically recorded in its 6 entirety in connection with certain offenses; 7 requiring law enforcement officers who do not comply 8 with the electronic recording requirement or who 9 conduct custodial interrogations at a place other than 10 a place of detention to prepare a specified report; 11 providing exceptions to the electronic recording 12 requirement; requiring a court to consider a law 13 enforcement officer’s failure to comply with the 14 electronic recording requirements in determining the 15 admissibility of a statement unless an exception 16 applies; requiring a court, upon the request of a 17 defendant, to give cautionary instructions to a jury 18 under certain circumstances; providing immunity from 19 civil liability to law enforcement agencies that 20 enforce certain rules; providing that no cause of 21 action is created against a law enforcement officer; 22 providing an effective date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Section 900.05, Florida Statutes, is created to 27 read: 28 900.05 Recording of custodial interrogations for certain 29 offenses.— 30 (1) As used in this section, the term: 31 (a) “Custodial interrogation” means questioning or other 32 conduct by a law enforcement officer which is reasonably likely 33 to elicit an incriminating response from an individual and which 34 occurs under circumstances in which a reasonable individual in 35 the same circumstances would consider himself or herself to be 36 in the custody of a law enforcement agency. 37 (b) “Electronic recording” means an audio recording or an 38 audio and video recording that accurately records a custodial 39 interrogation. 40 (c) “Covered offense” includes: 41 1. Arson. 42 2. Sexual battery. 43 3. Robbery. 44 4. Kidnapping. 45 5. Aggravated child abuse. 46 6. Aggravated abuse of an elderly person or disabled adult. 47 7. Aggravated assault with a deadly weapon. 48 8. Murder. 49 9. Manslaughter. 50 10. Aggravated manslaughter of an elderly person or 51 disabled adult. 52 11. Aggravated manslaughter of a child. 53 12. The unlawful throwing, placing, or discharging of a 54 destructive device or bomb. 55 13. Armed burglary. 56 14. Aggravated battery. 57 15. Aggravated stalking. 58 16. Home-invasion robbery. 59 17. Carjacking. 60 (d) “Place of detention” means a police station, sheriff’s 61 office, correctional facility, prisoner holding facility, or 62 other governmental facility where an individual may be held in 63 connection with a criminal charge that has been or may be filed 64 against the individual. 65 (e) “Statement” means a communication that is oral, 66 written, electronic, nonverbal, or in sign language. 67 (2)(a) A custodial interrogation at a place of detention, 68 including the giving of a required warning, the advisement of 69 the rights of the individual being questioned, and the waiver of 70 any rights by the individual, must be electronically recorded in 71 its entirety if the interrogation is related to a covered 72 offense. 73 (b) If a law enforcement officer conducts a custodial 74 interrogation at a place of detention without electronically 75 recording the interrogation, the officer shall prepare a written 76 report explaining the reason for his or her noncompliance with 77 this section and summarizing the custodial interrogation process 78 and the individual’s statements. 79 (c) As soon as practicable, a law enforcement officer who 80 conducts a custodial interrogation at a place other than a place 81 of detention shall prepare a written report explaining the 82 decision to interrogate at that place and summarizing the 83 custodial interrogation process and the individual’s statements 84 made at that place. 85 (d) Paragraph (a) does not apply: 86 1. If an unforeseen equipment malfunction prevents 87 recording the custodial interrogation in its entirety; 88 2. If a suspect refuses to participate in a custodial 89 interrogation if his or her statements are electronically 90 recorded; 91 3. Due to equipment operator error; 92 4. If the statement is made spontaneously and not in 93 response to a custodial interrogation question; 94 5. If a statement is made after questioning that is 95 routinely asked during the processing of the arrest of a 96 suspect; 97 6. If the custodial interrogation occurs when no law 98 enforcement officer participating in the interrogation has 99 knowledge of facts and circumstances that would lead an officer 100 to reasonably believe that the individual being interrogated may 101 have committed a covered offense; 102 7. If the law enforcement officer conducting the custodial 103 interrogation reasonably believes that electronic recording 104 would jeopardize the safety of the officer, individual being 105 interrogated, or others; or 106 8. If the custodial interrogation is conducted outside of 107 the state. 108 (3) Unless a court finds that one or more of the 109 circumstances specified in paragraph (2)(d) apply, the court 110 shall consider a law enforcement officer’s failure to make an 111 electronic recording of all or part of a custodial interrogation 112 in determining whether a statement made during the interrogation 113 is admissible. If the court admits into evidence a statement 114 made during a custodial interrogation that was not 115 electronically recorded as required under paragraph (2)(a), the 116 court must, upon request of the defendant, give cautionary 117 instructions to the jury regarding the law enforcement officer’s 118 failure to comply. 119 (4) A law enforcement agency in this state which has 120 enforced rules adopted pursuant to this section which are 121 reasonably designed to ensure compliance with the requirements 122 of this section is not subject to civil liability for damages 123 arising from a violation of this section. This section does not 124 create a cause of action against a law enforcement officer. 125 Section 2. This act shall take effect July 1, 2018.