Recording Interrogations and Penal Code § 859.5

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:

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