A Recorded Interrogation
Penal Code 859.5 — a custodial interrogation in a murder case, recorded in its entirety
Murder, in a place of detention. A custodial interrogation of any person, adult or minor, who is in a fixed place of detention and suspected of committing murder is electronically recorded in its entirety. A statement recorded that way creates a rebuttable presumption that it was in fact given and accurately recorded.
- Recording is not feasible because of exigent circumstances, explained in the police report.
- The person says they will speak only if the interrogation is not recorded, or will not continue unless recording stops.
- The interrogation occurred in another jurisdiction under that jurisdiction's law, unless done to avoid the section.
- No interrogating officer had reason to believe the person may have committed murder, until facts revealed during the interrogation give that reason.
- Recording would disclose a confidential informant or jeopardize someone's safety, explained in the police report.
- The recording device malfunctioned despite reasonable maintenance and timely repair was not feasible.
Those are among the circumstances in which the recording requirement does not apply, as the section lists them.
Whether questioning was a custodial interrogation, and what follows from a missing recording in a particular case, are questions of fact and law for a licensed California attorney. Miranda and the voluntariness of a statement are separate questions this page does not cover.
Sources for this section (1)
- Penal Code 859.5 — Recording a custodial interrogation in a murder case
Legal information, not legal advice. Verified as of September 2026. Applying it to a particular situation is the work of a licensed California attorney.