Bill Text: NY A06953 | 2019-2020 | General Assembly | Introduced
Bill Title: Enacts the uniform electronic recordation of custodial interrogations act requiring the audio and video recording of every custodial interrogation at a place of detention.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A06953 Detail]
Download: New_York-2019-A06953-Introduced.html
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. LBD10376-01-9A. 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.
