Enacts the uniform electronic recordation of custodial interrogations act requiring the audio and video recording of every custodial interrogation at a place of detention.
STATE OF NEW YORK
________________________________________________________________________
6953
2019-2020 Regular Sessions
IN ASSEMBLY
March 27, 2019
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to requiring
electronic recordation of custodial interrogations
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "uniform electronic recordation of custodial interrogations act".
3 § 2. The criminal procedure law is amended by adding a new article 66
4 to read as follows:
5 ARTICLE 66
6 UNIFORM ELECTRONIC RECORDATION OF CUSTODIAL INTERROGATIONS ACT
7 Section 66.00 Definitions.
8 66.05 Electronic recording requirement.
9 66.10 Notice and consent not required.
10 66.15 Exceptions.
11 66.20 Notice of intent to introduce unrecorded statement.
12 66.25 Procedural remedies.
13 66.30 Rules relating to electronic recording.
14 66.35 Limitation of liability.
15 66.40 Self-authenticating.
16 66.45 No right to electronic recording or transcript.
17 66.50 Relation to electronic signatures in global and national
18 commerce act.
19 § 66.00 Definitions.
20 As used in this article:
21 1. "Custodial interrogation" means questioning or other conduct by a
22 law enforcement officer which is reasonably likely to elicit an incrimi-
23 nating response from an individual and occurs when reasonable individ-
24 uals in the same circumstances would consider themselves in custody.
25 2. "Electronic recording" means an audio recording or audio and video
26 recording that accurately records a custodial interrogation. "Record
27 electronically" and "recorded electronically" have a corresponding mean-
28 ing.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10376-01-9
A. 6953 2
1 3. "Law enforcement agency" means a governmental entity or person
2 authorized by a governmental entity or state law to enforce criminal
3 laws or investigate suspected criminal activity. The term includes a
4 nongovernmental entity that has been delegated the authority to enforce
5 criminal laws or investigate suspected criminal activity. The term does
6 not include a law enforcement officer.
7 4. "Law enforcement officer" means:
8 (a) an individual employed by a law enforcement agency whose responsi-
9 bilities include enforcing criminal laws or investigating suspected
10 criminal activity; or
11 (b) an individual acting at the request or direction of an individual
12 described in paragraph (a) of this subdivision.
13 5. "Person" means an individual, corporation, business trust, statuto-
14 ry trust, estate, trust, partnership, limited liability company, associ-
15 ation, joint venture, public corporation, government or governmental
16 subdivision, agency, or instrumentality, or any other legal or commer-
17 cial entity.
18 6. "Place of detention" means a fixed location under the control of a
19 law enforcement agency where individuals are questioned about alleged
20 crimes or offenses. The term includes but is not limited to a jail,
21 police or sheriff's station, holding cell, and correctional or detention
22 facility.
23 7. "State" means a state of the United States, the District of Colum-
24 bia, Puerto Rico, the United States Virgin Islands, or any territory or
25 insular possession subject to the jurisdiction of the United States.
26 8. "Statement" means a communication whether oral, written, electron-
27 ic, or nonverbal.
28 § 66.05 Electronic recording requirement.
29 1. Except as otherwise provided by section 66.15 of this article, a
30 custodial interrogation at a place of detention, including the giving of
31 any required warning, advice of the rights of the individual being ques-
32 tioned, and the waiver of any rights by the individual, must be recorded
33 electronically in its entirety by both audio and video means when such
34 interrogation relates to any felony offense described in the penal law.
35 2. If a law enforcement officer conducts a custodial interrogation to
36 which subdivision one of this section applies without electronically
37 recording it in its entirety, the officer shall prepare a written or
38 electronic report explaining the reason for not complying with this
39 section and summarizing the custodial interrogation process and the
40 individual's statements.
41 3. A law enforcement officer shall prepare the report required by
42 subdivision two of this section as soon as practicable after completing
43 the interrogation.
44 4. This section does not apply to a spontaneous statement made outside
45 the course of a custodial interrogation or a statement made in response
46 to a question asked routinely during the processing of the arrest of an
47 individual.
48 § 66.10 Notice and consent not required.
49 Notwithstanding any law to the contrary, a law enforcement officer
50 conducting a custodial interrogation is not required to obtain consent
51 to electronic recording from the individual being interrogated or to
52 inform the individual that an electronic recording is being made of the
53 interrogation. This article does not permit a law enforcement officer or
54 a law enforcement agency to record a private communication between an
55 individual and such individual's lawyer.
56 § 66.15 Exceptions.
A. 6953 3
1 1. A custodial interrogation to which section 66.05 of this article
2 otherwise applies need not be recorded electronically if recording is
3 not feasible because of exigent circumstances. The law enforcement offi-
4 cer conducting the interrogation shall record electronically an explana-
5 tion of the exigent circumstances before conducting the interrogation,
6 if feasible, or as soon as practicable after the interrogation is
7 completed.
8 2. (a) A custodial interrogation to which section 66.05 of this arti-
9 cle otherwise applies need not be recorded electronically if the indi-
10 vidual to be interrogated indicates that the individual will not partic-
11 ipate in the interrogation if it is recorded electronically. If
12 feasible, the agreement to participate without recording must be
13 recorded electronically.
14 (b) If, during a custodial interrogation to which section 66.05 of
15 this article otherwise applies, the individual being interrogated indi-
16 cates that the individual will not participate in further interrogation
17 unless electronic recording ceases, the remainder of the custodial
18 interrogation need not be recorded electronically. If feasible, the
19 individual's agreement to participate without further recording must be
20 recorded electronically.
21 (c) A law enforcement officer, with intent to avoid the requirement of
22 electronic recording in section 66.05 of this article, may not encourage
23 an individual to request that a recording not be made.
24 3. If a custodial interrogation occurs in another state in compliance
25 with that state's law or is conducted by a federal law enforcement agen-
26 cy in compliance with federal law, the interrogation need not be
27 recorded electronically unless the interrogation is conducted with
28 intent to avoid the requirement of electronic recording set forth in
29 section 66.05 of this article.
30 4. (a) A custodial interrogation to which section 66.05 of this arti-
31 cle otherwise applies need not be recorded electronically if the inter-
32 rogation occurs when no law enforcement officer conducting the interro-
33 gation has knowledge of facts and circumstances that would lead an
34 officer reasonably to believe that the individual being interrogated may
35 have committed an act for which section 66.05 of this article requires
36 that a custodial interrogation be recorded electronically.
37 (b) If, during a custodial interrogation under paragraph (a) of this
38 subdivision, the individual being interrogated reveals facts and circum-
39 stances giving a law enforcement officer conducting the interrogation
40 reason to believe that an act has been committed for which section 66.05
41 of this article requires that a custodial interrogation be recorded
42 electronically, continued custodial interrogation concerning that act
43 must be recorded electronically, if feasible.
44 5. A custodial interrogation to which section 66.05 of this article
45 otherwise applies need not be recorded electronically if a law enforce-
46 ment officer conducting the interrogation or the officer's superior
47 reasonably believes that electronic recording would disclose the identi-
48 ty of a confidential informant or jeopardize the safety of an officer,
49 the individual being interrogated, or another individual. If feasible
50 and consistent with the safety of a confidential informant, an explana-
51 tion of the basis for the belief that electronic recording would
52 disclose the informant's identity must be recorded electronically at the
53 time of the interrogation. If contemporaneous recording of the basis for
54 the belief is not feasible, the recording must be made as soon as prac-
55 ticable after the interrogation is completed.
A. 6953 4
1 6. (a) All or part of a custodial interrogation to which section 66.05
2 of this article otherwise applies need not be recorded electronically to
3 the extent that recording is not feasible because the available elec-
4 tronic recording equipment fails, despite reasonable maintenance of the
5 equipment, and timely repair or replacement is not feasible.
6 (b) If both audio and video recording of a custodial interrogation are
7 otherwise required by section 66.05 of this article, recording may be by
8 audio alone if a technical problem in the video recording equipment
9 prevents video recording, despite reasonable maintenance of the equip-
10 ment, and timely repair or replacement is not feasible.
11 (c) If both audio and video recording of a custodial interrogation are
12 otherwise required by section 66.05 of this article, recording may be by
13 video alone if a technical problem in the audio recording equipment
14 prevents audio recording, despite reasonable maintenance of the equip-
15 ment, and timely repair or replacement is not feasible.
16 7. If the prosecution relies on any exception set forth in this
17 section to justify a failure to record electronically a custodial inter-
18 rogation, the prosecution must prove by a preponderance of the evidence
19 that the exception applies.
20 § 66.20 Notice of intent to introduce unrecorded statement.
21 If the prosecution intends to introduce in its case in chief a state-
22 ment made during a custodial interrogation to which section 66.05 of
23 this article applies which was not recorded electronically, the prose-
24 cution, pursuant to section 240.45 of this chapter, shall serve the
25 defendant with written notice of that intent and of any exception on
26 which the prosecution intends to rely.
27 § 66.25 Procedural remedies.
28 1. Unless the court finds that any exception in section 66.15 of this
29 article applies, the court shall consider the failure to record elec-
30 tronically all or part of a custodial interrogation to which section
31 66.05 of this article applies in determining whether a statement made
32 during the interrogation is admissible, including whether it was volun-
33 tarily made.
34 2. If the court admits into evidence a statement made during a custo-
35 dial interrogation that was not recorded electronically in compliance
36 with section 66.05 of this article, the court, on request of the defend-
37 ant, shall give a cautionary instruction to the jury.
38 § 66.30 Rules relating to electronic recording.
39 1. The superintendent of state police shall promulgate rules and regu-
40 lations to implement this article and monitor enforcement of the rules
41 by each law enforcement agency that is a governmental entity of this
42 state.
43 2. The rules adopted under subdivision one of this section shall
44 address the following topics:
45 (a) how an electronic recording of a custodial interrogation must be
46 made;
47 (b) the collection and review of electronic recordings, or the absence
48 thereof, by supervisors in each law enforcement agency;
49 (c) the assignment of supervisory responsibilities and a chain of
50 command to promote internal accountability;
51 (d) a process for explaining noncompliance with procedures and impos-
52 ing administrative sanctions for a failure to comply that is not justi-
53 fied;
54 (e) a supervisory system expressly imposing on individuals in specific
55 positions a duty to ensure adequate staffing, education, training, and
56 material resources to implement this article;
A. 6953 5
1 (f) a process for monitoring the chain of custody of an electronic
2 recording; and
3 (g) a procedure to ensure that the electronic recording of all or part
4 of a custodial interrogation is identified, accessible and preserved.
5 3. The rules adopted under paragraph (a) of subdivision two of this
6 section for video recording shall contain standards for the angle,
7 focus, and field of vision of a recording device which reasonably
8 promote accurate recording of a custodial interrogation at a place of
9 detention and reliable assessment of its accuracy and completeness.
10 4. Each law enforcement agency that is a governmental entity in this
11 state shall adopt and enforce rules providing for administrative disci-
12 pline of a law enforcement officer found by a court or the agency to
13 have violated this article. The rules shall provide a range of discipli-
14 nary sanctions reasonably designed to promote compliance with this arti-
15 cle.
16 § 66.35 Limitation of liability.
17 1. A law enforcement agency that is a governmental entity in this
18 state which has implemented procedures reasonably designed to enforce
19 the rules promulgated pursuant to section 66.30 of this article and
20 ensure compliance with this article is not subject to civil liability
21 for damages arising from a violation of this article.
22 2. Nothing in this article shall be construed as to create a right of
23 action against any law enforcement officer.
24 § 66.40 Self-authenticating.
25 1. In any pretrial or post trial proceeding, an electronic recording
26 of a custodial interrogation is self-authenticating if it is accompanied
27 by a certificate of authenticity sworn under oath or affirmation by an
28 appropriate law enforcement officer.
29 2. This article does not limit the right of an individual to challenge
30 the authenticity of an electronic recording of a custodial interrogation
31 under any law of this state other than this article.
32 § 66.45 No right to electronic recording or transcript.
33 1. This article does not create a right of an individual to require a
34 custodial interrogation to be recorded electronically.
35 2. This article does not require preparation of a transcript of an
36 electronic recording of a custodial interrogation.
37 § 66.50 Relation to electronic signatures in global and national
38 commerce act.
39 This article modifies, limits, and supersedes the electronic signa-
40 tures in global and national commerce act, 15 U.S.C. section 7001 et
41 seq., but does not modify, limit, or supersede section 101(c) of that
42 act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any
43 of the notices described in section 103(b) of that act, 15 U.S.C.
44 section 7003(b).
45 § 3. Severability. If any clause, sentence, paragraph, section or part
46 of this act shall be adjudged by any court of competent jurisdiction to
47 be invalid and after exhaustion of all further judicial review, the
48 judgment shall not affect, impair or invalidate the remainder thereof,
49 but shall be confined in its operation to the clause, sentence, para-
50 graph, section or part of this act directly involved in the controversy
51 in which the judgment shall have been rendered.
52 § 4. This act shall take effect on the one hundred eightieth day after
53 it shall have become a law. Effective immediately, the addition, amend-
54 ment and/or repeal of any rule or regulation necessary for the implemen-
55 tation of this act on its effective date are authorized to be made on or
56 before such date.