Recording Interrogations and Penal Code § 859.5

Robert C. Phillips
Deputy District Attorney (Ret.)
January, 2017

            As of January 1, 2017, with an amendment to Penal Code § 859.5,[1] it is now the law in California that any interrogation of a murder suspect, at least when questioned by law enforcement and done while in a “fixed place of detention,” “shall be electronically recorded in its entirety.”[2]  Section 859.5 had already set out a recording requirement for juvenile murder suspects, effective since January 1, 2014.[3]  This statutorily imposed, discretion eliminating requirement is now universal, no matter who the suspect.

            It is noted, by the way, that the use of the phrase, “in its entirety,” by implication, means from the very beginning, including most certainly the Miranda[4] admonishment and waiver, to the very end, right down to the officer announcing on the tape the date and time the interview was terminated.

            Section 859.5 is very detailed in its requirements.  For instance, definitions of its key terms are provided:

A “custodial interrogation” refers to “any interrogation in a fixed place of detention involving a law enforcement officer’s questioning that is reasonably likely to elicit incriminating responses, and in which a reasonable person in the subject’s position would consider himself or herself to be in custody, beginning when a person should have been advised of his or her constitutional rights, including the right to remain silent, the right to have counsel present during any interrogation, and the right to have counsel appointed if the person is unable to afford counsel, and ending when the questioning has completely finished.”[5]

A “fixed place of detention” is limited to “a fixed location under the control of a law enforcement agency where an individual is held in detention in connection with a criminal offense that has been, or may be, filed against that person, including a jail, police or sheriff’s station, holding cell, correctional or detention facility, juvenile hall, or a facility of the Division of Juvenile Facilities.”[6]  By its omissions, this would seem to eliminate the need for recording murder suspects questioned on the street, in someone’s home, in the back seat of a police car, and, obviously, in undercover situations.

And a “law enforcement officer” is, as might be expected, “a person employed by a law enforcement agency whose duties include enforcing criminal laws or investigating criminal activity, or any other person who is acting at the request or direction of that person.”[7]

Interestingly enough, recordings of minors must be by means of “a video recording that accurately records a custodial interrogation.”[8]  However, with adult suspects, the recording may either be audio and video, or audio alone, with a legislative preference for the former.[9]  It is also noted that video recordings have the added benefit of showing a suspect’s demeanor in the interrogation room; something that is sometimes as telling and useful as his words.

And, of course, there are exceptions:

“Exigent circumstances,” where it is “not feasible” to record an interrogation, will excuse the lack of a recording, although an explanation of what the officer considered to be an exigent circumstance must be documented in writing.[10] 

Where the suspect says he will not speak to law enforcement if the session is to be recorded also provides an exception, although the suspect’s comments themselves on this issue are to be recorded, “(i)f feasible.”  At the very least, his refusal to talk in front of a video or tape recorder “shall be document(ed) . . . in writing.”[11]

Other exceptions to the recording requirement include:

• When the interrogation is conducted in another jurisdiction that does not have a similar requirement, by law enforcement officers of that jurisdiction in compliance with the law of that jurisdiction, so long as such an interrogation is not done for the purpose of avoiding the requirements of section 859.5;[12]
• Where none of the officers involved have no knowledge of facts and circumstances that would lead an officer to reasonably believed that the interrogated suspect may have committed a murder, at least up until that point in the interrogation where he becomes the suspect in a murder;[13]
• Whenever electronically recording the interrogation discloses the identity of a confidential informant or jeopardizes the safety of an officer, the individual being interrogated, or another individual, with an explanation of the circumstances documented in the police report;[14]
• Where the available recording device malfunctions and a timely repair or replacement is not feasible;[15] or
• When the questioning constitutes “a routine processing or booking of that person” or any “spontaneous statements” made in the process.[16]
• It is also unnecessary to record the questioning of subject who is already in custody on a murder charge, but is to be questioned on other issues not related to a murder, so long as the murder does not come up during the questioning.[17]

It is the prosecutor’s burden of proof, by “clear and convincing evidence,” to establish that one of these exceptions to the statute’s recording requirements apply under the circumstances.[18]  To help the prosecutor in meeting his or her proof obligations, law enforcement must, where “feasible,” make a contemporaneous audio or audio and visual recording of the reasons for not making an electronic recording of the interrogation.[19]  Although not stated in the statute, where it is not feasible to provide such an explanation in the form of an electronic recording, law enforcement’s reasons for not recording an interrogation of a murder suspect should at least be documented in a written report.

Either way, for a defendant’s unrecorded statements to be admitted into evidence, a trial court must first find that his or her statements are admissible under the applicable rules of evidence, that the prosecution has proven by clear and convincing evidence that the statements were made voluntarily, and that at least one (if not more) of the statutory exceptions to the recording requirements, as described above, apply.[20]  Failure to meet these requirements will likely result in the suppression of the defendant’s statements.[21] 

Arguably, such statements, so long as otherwise voluntary, are still admissible for purposes of impeachment should a defendant testify in his own behalf in a manner that is inconsistent with his statements to law enforcement.[22]  This issue, however, is not addressed in section 859.5. 

Also not addressed in the statute is the practice of surreptitiously recording an interrogation.  Case law telling us that to do so is not improper, therefore, is no doubt still valid.[23]

Section 859.5 also provides certain requirements for maintaining the original and any “exact cop(ies)” of an electronic recording of a custodial interrogation.[24]

So what does all this mean in the real world? 

In the recent California Supreme Court decision of People v. Winbush,[25] the potential problems stemming from a police officer’s failure to record a murder suspect’s interrogation, coming in the form of unnecessary issues that as a result had to be litigated, become evident.  While Winbush was interrogated, tried, and convicted before enactment of Penal Code § 859.5, the wisdom of the section’s recording requirements are clearly illustrated by the issues Grayland Winbush attempted to interject into his appeal following his capital murder conviction.

Winbush’s act of murder occurred on December 22, 1995.  Just recently released from the California Youth  Authority, and totally incapable of becoming a law-abiding citizen, Winbush and his childhood friend, Norman Patterson, beat, stabbed, and ultimately strangled to death Erika Beeson, the girlfriend of another acquaintance, during a residential robbery. 

Despite being a suspect from the beginning, Winbush wasn’t questioned about the Beeson murder until over four months later while already in custody on another matter.  When finally read his Miranda rights and questioned, he was interrogated for over 16 hours, but in seven separate sessions with significant rest breaks between each.  A tape-recorder was not used during any of the first five of these sessions.  It was not until Winbush finally began to weaken and admit to his involvement in Beeson’s death that his statements were taped, and even then, it was done so surreptitiously.

The timing related to when a tape-recorder was first used is significant in that Winbush began making admissions, tying him to the crime scene, by the third session.  In the fourth session, his interrogators played for him the first four minutes of co-defendant Patterson’s confession, implicating Winbush in the murder.  Winbush later claimed that the detectives had played for him Patterson’s entire confession, arguing that such a tactic somehow rendered his own later confession involuntary.  It thus became an issue as to who was telling the truth—Winbush or the detectives—without the corroboration an electronic recording would have provided.

At the tail end of the fourth session, still before he was recorded, Winbush finally admitted intending a robbery only, but that Beeson “didn't take the robbery seriously.”  At trial, Winbush later denied committing the murder altogether, thus making it an issue as to whether he had actually made this statement.

During the fifth session, Winbush continued to admit that he was there during Beeson’s murder.  Not yet admitting to having committed the murder himself, Winbush added the impliedly incriminating comment; “If I get the death penalty, I get it.”  The detectives later testified that they did not respond to this comment, nor did they ever discuss with Winbush the death penalty or any other potential penalties.  In contrast, Winbush testified that the officers threatened him with the death penalty, implying that a confession was his only escape from the ultimate punishment; i.e., an “offer of leniency.”  Again, there was no electronic recording of this conversation to aid a trier of fact in deciding who was telling the truth.

Finally, with a tape recorder in place, Winbush admitted in the sixth session to robbing and killing Beeson.  His only comment as to punishment was, “I’m going to get what I'm going to get.”  In the seventh and final session, with a tape recorder now on the table and in full view, Winbush waived his Miranda rights again and fully confessed.[26] 

At trial, the issue was whether this recorded confession was the product of earlier coerced statements, obtained through unlawful threats, and thus inadmissible.  Had the court found that such a threat had indeed been used, and that it was coupled with an offer of a lesser sentence should he confess, the admissibility of that confession would have been at serious risk.[27]  An electronic recording, whether via videotape or merely audiotape, would have forestalled such an argument. 

Fortunately, in this case, the trial court ruled that the officers’ testimony on this issue was credible, and that Winbush’s was not.[28]  But we can’t always guarantee such a result unless, of course, the interrogation is recorded.

While it can be argued that most legislative enactments that mandate procedures not required by the Constitution, or that in any way dictate or limit an officer’s use of discretion in the field, are both unnecessary and something to be avoided, Penal Code § 859.5 is one that as prosecutors for which we should perhaps be thankful.  It is hard to argue that audiotapes, and even more so videotapes showing a murder suspect’s demeanor as well as memorializing his statements, are not the best evidence of what was said and the conditions under which those statements were made.  In that regard, section 859.5 is perhaps a good thing.

[1]             Amended Stats 2016 ch 791 § 2 (SB 1389)

[2]             Subd. (a)

[3]             Stats 2013 ch 799 § 2 (SB 569)

[4]             Miranda v. Arizona (1966) 384 U.S. 436

[5]             Subd. (g)(1)

[6]             Subd. (g)(2)

[7]             Subd. (g)(3)

[8]             Subd. (g)(2)(A)

[9]             Subd. (g)(2)(B)

[10]            Subd. (b)(1)

[11]            Subd. (b)(2)

[12]            Subd. (b)(3)

[13]            Subd. (b)(4)

[14]            Subd. (b)(5)

[15]            Subd. (b)(6)

[16]            Subd. (b)(7)

[17]            Subd. (b)(8)

[18]            Subd. (c) & (d)(4)

[19]            Subd. (d)(3)

[20]            Subd. (d)

[21]            See subd. (e)

[22]            Harris v. New York (1971) 401 U.S. 222

[23]            People v. Jackson (1971) 19 Cal.App.3rd 95, 101

[24]            Subd. (f)

[25]            (Jan. 26, 2017) __ Cal.5th __ [2017 Cal. LEXIS 575]

[26]            People v. Winfield, supra.

[27]            People v. McClary (1977) 20 Cal.3rd 218, 229;

People v. Holloway (2004) 33 Cal.4th 96, 116

[28]            People v. Winfield, supra, at p. _