BILL REQ. #:  H-1504.1 

Read first time 02/17/2003.   Referred to Committee on Judiciary.

     AN ACT Relating to electronic recording of custodial interrogations; and adding a new section to chapter 10.58 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 10.58 RCW to read as follows:
     (1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Custodial interrogation" means an interrogation of a person suspected of committing a felony that is conducted in:
     (i) A sheriff's office, police station, courthouse, correctional facility, community correctional center, detention facility, or a state, regional, or local correctional facility; or
     (ii) A place not listed in (a)(i) of this subsection if an adequate recording device is available.
     (b) "Electronic recording" means a complete and authentic recording created by motion picture, videotape, audiotape, or digital media.
     (2) Except as otherwise provided in subsection (3) of this section, a statement made by a defendant during a custodial interrogation is inadmissible as evidence against the defendant in a criminal proceeding unless:
     (a) An electronic recording of the entire custodial interrogation was created;
     (b) While the electronic recording was being made and prior to making the statement, the defendant was advised of all rights of the defendant as required by state and federal law and the defendant knowingly, intelligently, and voluntarily waived those rights;
     (c) At the time the electronic recording was created, the recording device being used was capable of creating an accurate recording and the person operating the recording device was qualified to operate the recording device;
     (d) The electronic recording is not altered;
     (e) All voices on the electronic recording that are material to the custodial interrogation are identified; and
     (f) The defendant was provided with a complete and accurate copy of the electronic recording not later than twenty days before the date of the criminal proceeding.
     (3) Nothing in this section precludes the admission of a statement made by a defendant during a custodial interrogation if:
     (a) The statement was made before a grand jury;
     (b) The statement was made in open court at trial or in a hearing;
     (c) The custodial interrogation was conducted in another state in compliance with the laws of that state;
     (d) The custodial interrogation was conducted by a federal law enforcement officer in compliance with the laws of the United States;
     (e) The defendant refused to have the custodial interrogation electronically recorded and the refusal was electronically recorded; or
     (f) The law enforcement agency that conducted the custodial interrogation can demonstrate through clear and convincing evidence that the failure to create an electronic recording of the entire custodial interrogation was the result of malfunction of the recording device and that obtaining a replacement device was not feasible.
     (4) A statement of a defendant made during an interrogation other than a custodial interrogation is inadmissible as evidence against the defendant in a criminal proceeding if the law enforcement agency conducting the interrogation selected the location for the interrogation for the purpose of avoiding the electronic recording requirements of this section.
     (5) A law enforcement agency that creates an electronic recording of a custodial interrogation shall preserve the electronic recording until the defendant's conviction for any offense relating to the custodial interrogation is final and all direct and habeas appeals are exhausted, or until the prosecution of such offense is barred by law.