72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1182
 
                         House Bill 2079
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Joint Interim Committee on
  Judiciary for Oregon Criminal Defense Lawyers Association)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Provides that statement made by defendant during custodial
interrogation is inadmissible as evidence against defendant
unless interrogation was electronically recorded. Provides
exceptions.
 
                        A BILL FOR AN ACT
Relating to criminal procedure.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) As used in this section:
  (a) 'Custodial interrogation' means an interrogation of a
person suspected of committing a felony that is conducted in:
  (A) A sheriff's office, a police station, a courthouse, a
detention facility or a state, regional or local correctional
facility; or
  (B) A place not listed in subparagraph (A) of this paragraph 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) Notwithstanding ORS 136.432 and 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 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 in accordance with ORS 135.815
 
and 135.845 and in no event later than the 20th day 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 corpus appeals are exhausted, or until the
prosecution of such offenses is barred by law. + }
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