Electronic Recording of Interrogations Act
Summary: The Electronic Recording of Interrogations Act requires that any custodial interrogation conducted by police must be electronically recorded in its entirety.
SECTION 1. SHORT TITLE
This Act shall be called the “Electronic Recording 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—The purpose of this Act is to require the creation of an electronic record of an entire custodial interrogation in order 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 that occurs while a person is in custody in a place of detention and involves a law enforcement officer’s questioning that is reasonably likely to elicit incriminating responses.
2. “Electronic recording” means an audio and visual recording that is an authentic, accurate, unaltered record.
3. “Place of detention” means a jail, police or sheriff’s station, correctional or detention facility, holding facility for prisoners, or other place where persons are held in connection with juvenile or criminal charges.
4. “In its entirety” means a record that begins with and includes a law enforcement officer’s advice to the person in custody of that person’s constitutional rights, ends when the interview has completely finished, and clearly shows both the interrogator and the person in custody throughout.
(B) ELECTRONIC RECORDING OF INTERROGATIONS REQUIRED
1. During the prosecution of a class [insert as appropriate] felony and during any proceeding in juvenile court, an oral, written, non-verbal or sign language statement of a defendant or juvenile made in the course of a custodial interrogation shall be presumed inadmissible as evidence against the defendant or juvenile unless an electronic recording is made of the custodial interrogation in its entirety.
2. If the court finds that the defendant or juvenile was subjected to a custodial interrogation that was not electronically recorded in its entirety, then any statements made by the defendant or juvenile following that custodial interrogation, even if otherwise in compliance with this section, are also presumed inadmissible.
3. The state may rebut a presumption of inadmissibility through clear and convincing evidence that the statement was both voluntary and reliable, and that law enforcement officers had good cause for failing to electronically record the entire interrogation. Examples of good cause include that:
a. The interrogation took place in a location other than a police station, correctional facility, or holding facility for prisoners and where the requisite recording equipment was not readily available;
b. The accused refused to have his or her interrogation electronically recorded, and the refusal itself was electronically recorded; or
c. The failure to electronically record an entire interrogation was the result of equipment failure and obtaining replacement equipment was not feasible.
4. Nothing in this section precludes the admission of:
a. A statement made by the accused in open court at his or her trial, before a grand jury, or at a preliminary hearing;
b. A spontaneous statement that is not made in response to a question;
c. A statement made after questioning that is routinely asked during the processing of the arrest of the suspect;
d. A statement made during a custodial interrogation that is conducted out-of-state;
e. A statement obtained by a federal law enforcement officer in a federal place of detention;
f. A statement given at a time when the interrogators are unaware that the person is suspected of a class [insert as appropriate] felony; or
g. A statement, otherwise inadmissible under this section, that is used only for impeachment and not as substantive evidence.
5. The state shall not destroy or alter any electronic recording made of a custodial interrogation until such time as the defendant’s conviction for any offense relating to the interrogation is final and all direct and habeas corpus appeals are exhausted, or the prosecution of that offense is barred by law.
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, 2007. Section 3 of this Act shall take effect on July 1, 2008.