First determine whether California Penal Code section 859.5 covers the interview. It generally requires a complete electronic recording of a qualifying custodial interrogation of a person suspected of murder at a fixed place of detention. The statute contains specific exceptions and remedies. A missing beginning, ending, or segment does not automatically suppress a statement, and a shortened copy may be different from an original recording that was never made.

Does section 859.5 apply?

The statute covers questioning that is reasonably likely to elicit incriminating responses when a reasonable person in the subject’s position would consider themself in custody, at a fixed location controlled by a law-enforcement agency where the person is detained in connection with a criminal offense. It applies to a person, including a minor, suspected of murder under the provisions identified in the statute. For an adult, the recording may be audio or video; for a covered minor, it must be video. (Penal Code § 859.5(a), (g))

The rule is therefore narrower than “police must record every interview” or “every confession.” The custody, location, offense suspicion, and nature of the questioning matter. The definition says the covered interrogation begins when a person should have been advised of constitutional rights and ends when questioning has completely finished. Whether those conditions existed depends on the facts.

What statutory exceptions can excuse a complete recording?

The prosecution must prove an asserted exception by clear and convincing evidence. Section 859.5 lists these specific circumstances:

  • Exigency: Recording was not feasible because of exigent circumstances, and the police report documents the explanation.
  • The person refuses recording: The person says they will speak only if the interrogation is not recorded, or indicates during questioning that they will not continue unless recording stops. If feasible, the statement about recording is itself recorded; if the person refuses any recorded statement, the officer must document the refusal in writing.
  • Another jurisdiction: The interrogation occurred elsewhere and was conducted by that jurisdiction’s officers in compliance with that jurisdiction’s law, unless it was done to avoid California’s recording requirement.
  • No reasonable basis to suspect murder at the start: No officer conducting the interrogation knew facts that would lead a reasonable officer to believe the person may have committed a covered murder. If the person reveals facts giving an officer reason to believe a murder occurred, continued questioning about that offense must be recorded.
  • Safety or confidential informant concern: The officer or supervisor reasonably believes recording would reveal a confidential informant’s identity or jeopardize someone’s safety, and the circumstances are documented in the police report.
  • Equipment failure: The recording device malfunctioned despite reasonable maintenance, and timely repair or replacement was not feasible.
  • Routine booking: The questions and responsive statements were part of routine processing or booking. The statute also does not require recording spontaneous statements made in response to routine booking questions.
  • Questioning unrelated to the murder charge: A person in custody on a covered murder charge is questioned about something unrelated to that offense. If the covered offense is raised, continued questioning about it must be recorded.

These are statutory conditions, not general excuses. If the prosecution relies on one, it has the burden to establish that the particular exception applies. (Penal Code § 859.5(b)–(c))

What can an incomplete recording mean?

Compare the original recording with the copy produced, its available metadata, any transcript, reports, and records of when recording began or stopped. Identify whether the gap is only in the copy provided or whether the original has the same gap. Map each missing segment to the questions and statements around it. A transcript may help locate a passage, but it does not replace the recording when the issue is what was captured.

In an adult case, the interrogating entity must maintain the original or an exact copy of a recording made under the statute until the related conviction is final and direct and habeas appeals are exhausted, or prosecution is barred by law. The statute refers to a separate retention provision for juvenile proceedings. The entity may make true, accurate, and complete copies in another format. (Penal Code § 859.5(f)) A shortened discovery clip can be addressed by seeking the complete existing recording; a segment that was never recorded cannot be recreated from the file itself.

If only an excerpt of a conversation or writing is offered, Evidence Code section 356 allows other portions on the same subject or needed to understand the offered part to be inquired into or introduced. That completeness rule concerns context; it does not establish that a missing original segment exists. (Evidence Code § 356)

What remedies does the statute provide?

If no statutory exception applies and the recording requirement was violated, the court must consider the failure when deciding a motion to suppress. Evidence of noncompliance may also support a claim that a statement was involuntary or unreliable, if the evidence is otherwise admissible. If the court finds an interrogation violated the recording requirement, it must give a jury instruction advising caution about statements made during that interrogation. These are tailored remedies; the statute does not require automatic exclusion in every case. (Penal Code § 859.5(e))

The statute also states that an unrecorded statement may be admitted if the court finds it admissible under evidence rules, the prosecution proves voluntariness by clear and convincing evidence, law enforcement made a contemporaneous audio or audiovisual recording of the reason for not recording the statements (unless making that explanation recording was not feasible), and the prosecution proves by clear and convincing evidence that a statutory exception existed. (Penal Code § 859.5(d))

A lawyer reviewing a suspected gap can compare the interview setting and offense focus with the statute, seek the complete recording and related records through applicable process, and assess the reason given for any missing portion. For a broader homicide-defense overview, see the Law Offices of David S. Chesley’s Los Angeles murder and homicide defense page. To discuss a specific recording, call (800) 755-5174.