MODEL BILLS
Electronic Recording of Custodial Interrogations Act
Summary: The Electronic Recording of Custodial Interrogations Act requires that any custodial interrogation conducted by police must be electronically recorded in its entirety.
[This model is based on a version published by Thomas P. Sullivan and Andrew W. Vail.]
SECTION 1. SHORT TITLE
This Act shall be called the “Electronic Recording Custodial of Interrogations Act.”
SECTION 2. FINDINGS AND PURPOSE
(A) FINDINGS—The legislature finds that:
1. Every year, innocent people are jailed because of false confessions during custodial interrogations.
2. Electronic recording of interrogations helps to protect the innocent and convict the guilty.
3. Law enforcement agencies that use electronic recording have proven its value.
(B) PURPOSE—This law is enacted to eliminate disputes about interrogations, thereby improving prosecution of the guilty while affording protection to the innocent.
SECTION 3. ELECTRONIC RECORDING OF INTERROGATIONS
After section XXX, the following new section XXX shall be inserted:
(A) DEFINITIONS—In this section:
1. “Custodial interrogation” means an interview conducted by a law enforcement officer for the purpose of investigating violations of law, of a person who is being held in custody in a place of detention, when the interview is reasonably likely to elicit responses that may incriminate the person in connection with a felony under the laws of this state.
2. “Electronic Recording” or “Electronically Recorded” means an audio, video and/or digital electronic recording of a Custodial Interview.
3. “Place of detention” means a jail, police or sheriff’s station, holding cell, correctional or detention facility, office, or other structure located in this state, where persons are held in connection with juvenile or criminal charges.
4. “Statement” means an oral, written, sign language, or other nonverbal communication.
(B) ELECTRONIC RECORDING OF INTERROGATIONS REQUIRED
1. Except as provided in section (C), all custodial interviews conducted by a law enforcement officer in a place of detention shall be electronically recorded.
2. The recording shall be an authentic, accurate, uninterrupted, and unaltered record of the interview, beginning with the law enforcement officer’s advice of the person’s rights, and ending when the interview has completely finished.
3. If a visual recording is made, the camera or cameras shall be simultaneously focused on both the law enforcement interviewer and the suspect.
(C) EXCEPTIONS—A Statement need not be Electronically Recorded if the court finds:
1. The interview was a part of a routine processing or “booking” of the person, or routine border inquiries; or
2. The interview occurred before a grand jury or court; or
3. Before or during the interview, the person agreed to respond to the law enforcement officer’s questions only if his or her statements were not electronically recorded, and if feasible the person’s agreement was electronically recorded before the interview began; or
4. After having consulted with his or her lawyer, the person agreed to participate in the interview without an electronic recording being made, and if feasible the person’s agreement was electronically recorded before the interview began; or
5. The law enforcement officer in good faith failed to make an electronic recording of the interview because he or she inadvertently failed to operate the recording equipment properly, or without his or her knowledge the recording equipment malfunctioned or stopped operating; or
6. The interview was conducted outside this state by officials of another state, country, or jurisdiction in compliance with the law of that place, without involvement of or connection to a law enforcement officer of this state; or
7. The law enforcement officer who conducted the interview, or his superior, reasonably believed that the making of an electronic recording would jeopardize his safety or the safety of the person to be interviewed, or another person, or the identity of a confidential informant, and if feasible an explanation of the basis for that belief was electronically recorded before the interview began; or
8. The interviewing law enforcement officer reasonably believed that the crime for which the person was taken into custody and being investigated or questioned was not a crime referred to in the definition of “custodial interrogation;” or
9. Exigent circumstances existed which prevented the law enforcement officer from making, or rendered it not feasible to make, an electronic recording of the interview, and if feasible an explanation of the circumstances was electronically recorded before the interview began; or
10. The Statement is offered as evidence solely to impeach or rebut the person’s prior testimony, and not as substantive evidence.
(D) CAUTIONARY JURY INSTRUCTIONS—In the event the prosecution offers an unrecorded Statement into evidence that was required to be Electronically Recorded by the provisions of this section, and the court finds the prosecutor has not established by a preponderance of the evidence that a listed exception is applicable, the trial judge shall, upon request of the defendant, provide the jury with the following cautionary instructions, with changes that are necessary for consistency with the evidence:
“The law of this state required that the interview of the defendant by law enforcement officers which took place on [insert date] at [insert place] was to be electronically recorded, from beginning to end. The purpose of this requirement is to ensure that you jurors will have before you a complete, unaltered, and precise record of the circumstances under which the interview was conducted, and what was said and done by each of the persons present.
“In this case, the interviewing law enforcement agents failed to comply with that law. They did not make an electronic recording of the interview of the defendant. No justification for their failure to do so has been presented to the court. Instead of an electronic recording, you have been presented with testimony as to what took place, based upon the recollections of law enforcement personnel [and the defendant].
“Accordingly, I must give you the following special instructions about your consideration of the evidence concerning that interview.
“Because the interview was not electronically recorded as required by our law, you have not been provided the most reliable evidence as to what was said and done by the participants. You cannot hear the exact words used by the participants, or the tone or inflection of their voices.
“Accordingly, as you go about determining what occurred during the interview, you should give special attention to whether you are satisfied that what was said and done has been accurately reported by the participants, including testimony as to statements attributed by law enforcement witnesses to the defendant.”
(E) HANDLING AND PRESERVATION OF ELECTRONIC RECORDINGS
1. Every Electronic Recording of a Custodial Interrogation shall be clearly identified and catalogued by the agency of the recording law enforcement personnel.
2. If a juvenile or criminal proceeding is brought against a person who was the subject of an Electronically Recorded Custodial Interrogation, the recording shall be preserved by the agency of the recording law enforcement personnel until all appeals, post-conviction, and habeas corpus proceedings are final and concluded, or the time within which they must be brought has expired.
3. If no juvenile or criminal proceeding is brought against a person who has been the subject of an Electronically Recorded Custodial Interrogation, the recording shall be preserved by the agency of the recording law enforcement personnel until all applicable federal and state statutes of limitations bar prosecution of the person.
SECTION 4. GRANTS FOR ELECTRONIC RECORDING EQUIPMENT
From appropriations made for that purpose, the Secretary of [Public Safety] shall make grants to local law enforcement agencies for the purchase of equipment for electronic recording of interrogations. The Secretary shall promulgate rules to implement this paragraph.
SECTION 5. TRAINING OF LAW ENFORCEMENT OFFICERS
From appropriations made for that purpose, the Secretary of [Public Safety] shall initiate, administer and conduct training programs for law enforcement officers and recruits on the methods and technical aspects of electronic recording of interrogations.
SECTION 6. EFFECTIVE DATE
Sections 4 and 5 of this Act shall take effect on July 1, 20XX. Section 3 of this Act shall take effect six months later on January 1, 20XX.