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New Requirements for Police Who Question Murder Suspects

January 7, 2017

A new law has gone into effect as of January 1, 2017 that affects the requirements for police who question a person suspected of murder. The requirements, if not followed, may result in all statements made by the suspect being thrown out of court.

California Penal Code section 859.5 was enacted in 2013. Originally, it stated that when a minor who is suspected of murder is interrogated in “a fixed place of detention” that a recording of that interrogation must be made. The new amendment to section 859.5 that took effect on January 1, 2017 now extends this requirement to adults.

Here are the key excerpts from the amended statute:

(a) A custodial interrogation of an adult or a minor, who is in a fixed place of detention, and suspected of committing murder shall be electronically recorded.

Several exceptions to the recording requirement exist and must be considered in any murder case in which the defendant has made statements to police while in custody:

The recording requirement does not apply if:
(1) Electronic recording is not feasible because of exigent circumstances.
(2) The person will speak to a law enforcement officer only if the interrogation is not electronically recorded.
(3) The interrogation occurred in another jurisdiction and was in compliance with the law of that jurisdiction.
(4) No law enforcement officer conducting the interrogation has knowledge that the defendant may have committed murder.
(5) The interrogating officer or the officer’s superior believes that recording the statement would disclose the identity of a confidential informant or jeopardize the safety of an officer, the individual being interrogated, or another individual.
(6) The failure to record the statement was the result of a malfunction and timely repair or replacement of the recording equipment was not feasible.
(7) The questions and the answers were part of a routine processing or booking process at the custody facility.
(8) The interrogation is not related to the murder investigation.

If the prosecution relies on one of these exceptions, it must show by clear and convincing evidence that the exception applies.

If the defendant's statements were not electronically recorded as required by the statute, they may still be admitted into evidence if the court finds that all of the following apply:

(1) The statements are otherwise admissible.
(2) The prosecution has proven by clear and convincing evidence that the statements were made voluntarily.
(3) Law enforcement made a contemporaneous recording of the reason why recording the suspect's statement was not feasible.
(4) The prosecution has proven by clear and convincing evidence that one or more of the exceptions apply.

If the court finds that none of the exceptions apply, the following remedies are available to the murder defendant:

(1) Failure to comply with the recording requirement shall be considered in a motion to suppress a statement of the defendant made during or after a custodial interrogation.

(2) Failure to comply is admissible on claims that the defendant's statement was involuntary or is unreliable.

(3) If the court finds that defendant was subject to an interrogation in violation of the statute, the court shall provide the jury with a jury instruction requiring the jury to view with caution the statements.

The statute applies only to "custodial interrogation" which is defined in detail in the statute.

Here is a link to the complete statute:


If you or a loved one have been charged with murder, please contact Chambers Law Firm for a free consultation. We will analyze your case and determine whether this new law or any other legal principles apply to your case that will help you fight the murder charge.

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