In a fair criminal justice system, the guilty are punished and the innocent are set free. Unfortunately, our system is not always fair, and innocent people sometimes go to prison for crimes they did not commit. In 2015, 149 people were exonerated nationwide for crimes they did not commit. In 27 of those cases, the person was convicted based on a false confession.

That is why the California legislature, in conjunction with the Northern California Innocence Project, pushed for a law that requires the interrogation of anyone suspected of committing murder to be recorded electronically. This means that if you are charged with murder, California Penal Code Section 859.5 allows the court to exclude any evidence of your statements if no video and audio recording is made and presented.

“Custodial Interrogations”

For electronic recording to be required, the interrogation must be a “custodial interrogation.” This means that a law enforcement officer is questioning you at a fixed place of detention where a person in your situation would not feel free to leave. In this situation, the police must advise you of your rights to remain silent and to have legal counsel present.

Essentially, this law applies if you have been arrested on suspicion of committing murder. If you have not been arrested or are stopped on the street to answer a few questions, the recording law does not apply.

The Exceptions to the Law

California Penal Code Section 895.5 lists a number of exceptions where the police are not required to record your interrogation. These exceptions include:

• When recording is not feasible because of exigent circumstances;
• You tell the police that you will not speak unless the interrogation is not recorded;
• The interrogation took place in another state where recording is not required;
• The officer reasonably believed the interrogation could jeopardize the safety of a confidential informant, law enforcement officer, or you;
• The officers had no reason to suspect you of a murder and only became aware of it during the course of the questioning, after which a recording was then made; or
• The recording device malfunctioned despite reasonable efforts to maintain it

If a recording is not made, the law enforcement officer who conducted the interrogation must document the reasons for the failure to make a recording. The prosecution must present these reasons to the court.

What If the Recording Was Not Made Without Good Reason?

If the court determines that the interrogation should have been recorded and it wasn’t, there are a few things the court can do that could help you fight these charges. The court can do any of the following:

Suppress the statements you made during the interrogation;
Admit the police’s failure to make a recording as evidence that incriminating statements you made are not reliable; or
Instruct the jury to consider that the statements you are alleged to have made during the interrogation could be unreliable.

Having the evidence suppressed or deemed unreliable by the court could severely damage the prosecution’s case against you.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

Though this new law is designed to reduce the number of innocent people convicted of murder, law enforcement can and will make mistakes. That is why it so important to have an experienced criminal defense attorney fighting for you if you are accused of murder or other serious felonies.

At Wallin & Klarich, our attorneys have over 35 years of experience successfully defending clients accused of murder. Let us help you now. With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (888) 280-6839 for a free phone consultation. We will get through this together.