Bill Text: NY S02345 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides that an oral or written statement of an accused made as a result of a custodial interrogation shall be presumed inadmissible as evidence against such accused in any criminal proceeding charging a felony offense unless an electronic recording is made of such interrogation.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2010-01-06 - REFERRED TO CODES [S02345 Detail]
Download: New_York-2009-S02345-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2345 2009-2010 Regular Sessions I N S E N A T E February 18, 2009 ___________ Introduced by Sens. SCHNEIDERMAN, DIAZ, DUANE, KRUEGER, PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to requiring the recording of statements in certain criminal investigations THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Legislative intent. Properly recorded interrogations 2 provide the best evidence of the communications that occurred during an 3 interrogation; prevent disputes about how an officer conducted himself 4 or herself or treated a suspect during the course of an interrogation; 5 prevent a defendant from lying about his or her account of events 6 originally provided to law enforcement; spare judges and jurors the time 7 necessary to assess which account of an interrogation to believe; and 8 enhance public confidence in the criminal investigation process. It is 9 the intent of this legislature to require the video and audio recording 10 of custodial interrogations in New York state. 11 S 2. The criminal procedure law is amended by adding a new section 12 60.53 to read as follows: 13 S 60.53 RULES OF EVIDENCE; ELECTRONIC RECORDING OF CUSTODIAL INTERRO- 14 GATION. 15 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE 16 THE FOLLOWING MEANINGS: 17 (A) "CUSTODIAL INTERROGATION" MEANS AN INTERVIEW, BEGINNING WITH A LAW 18 ENFORCEMENT OFFICER'S ADVICE OF A PERSON'S MIRANDA RIGHTS AND ENDING 19 WHEN THE INTERVIEW HAS COMPLETELY FINISHED, WHICH OCCURS WHILE A PERSON 20 REASONABLY BELIEVES HE OR SHE IS IN CUSTODY, INVOLVING A LAW ENFORCEMENT 21 OFFICER'S QUESTIONING THAT IS REASONABLY LIKELY TO ELICIT INCRIMINATING 22 RESPONSES. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02813-01-9 S. 2345 2 1 (B) "PLACE OF DETENTION" MEANS A JAIL, POLICE OR SHERIFF'S STATION, 2 HOLDING CELL, CORRECTIONAL OR DETENTION FACILITY OF OTHER PLACE WHERE 3 PERSONS ARE QUESTIONED IN CONNECTION WITH CRIMINAL CHARGES. 4 (C) "ELECTRONIC RECORDING" OR "ELECTRONICALLY RECORDED" MEANS AN AUDIO 5 AND VISUAL RECORDING THAT IS AN AUTHENTIC, ACCURATE AND UNALTERED RECORD 6 OF A CUSTODIAL INTERROGATION. 7 (D) "STATEMENT" MEANS ANY ORAL, WRITTEN, SIGN LANGUAGE OR VERBAL 8 COMMUNICATION. 9 2. (A) ALL STATEMENTS MADE BY A PERSON DURING A CUSTODIAL INTERRO- 10 GATION AT A PLACE OF DETENTION RELATING TO A FELONY OFFENSE OR FELONY 11 OFFENSES BROUGHT UNDER THIS CHAPTER SHALL BE ELECTRONICALLY RECORDED. 12 (B) IF ANY PART OF THE INTERROGATION NECESSARILY TAKES PLACE OUTSIDE 13 OF A PLACE OF DETENTION, AUDIO RECORDING IS AN ACCEPTABLE ALTERNATIVE TO 14 AUDIO AND VISUAL RECORDING. 15 (C) IN PLACES OF DETENTION, THE CAMERA SHALL BE FOCUSED UPON BOTH THE 16 INTERROGATOR AND THE SUSPECT SIMULTANEOUSLY. 17 3. EXCEPT AS PROVIDED IN SUBDIVISIONS FOUR AND FIVE OF THIS SECTION, 18 ALL STATEMENTS MADE BY A PERSON DURING A CUSTODIAL INTERROGATION THAT 19 ARE NOT ELECTRONICALLY RECORDED, AND ALL STATEMENTS MADE THEREAFTER BY 20 THE PERSON DURING THE CUSTODIAL INTERROGATIONS, INCLUDING BUT NOT LIMIT- 21 ED TO STATEMENTS THAT ARE ELECTRONICALLY RECORDED, SHALL BE INADMISSIBLE 22 AS EVIDENCE AGAINST THE PERSON IN ANY FELONY CRIMINAL PROCEEDING BROUGHT 23 AGAINST SUCH PERSON. 24 4. THE PRESUMPTION OF INADMISSIBILITY OF STATEMENTS PROVIDED IN SUBDI- 25 VISION THREE OF THIS SECTION MAY BE OVERCOME, AND STATEMENTS THAT WERE 26 NOT ELECTRONICALLY RECORDED MAY BE ADMITTED INTO EVIDENCE IN A FELONY 27 CRIMINAL PROCEEDING BROUGHT AGAINST THE PERSON, IF THE COURT FINDS: 28 (A) THAT THE STATEMENTS ARE ADMISSIBLE UNDER APPLICABLE RULES OF 29 EVIDENCE; AND 30 (B) THAT THE STATEMENTS ARE PROVEN TO HAVE BEEN MADE VOLUNTARILY, AND 31 ARE RELIABLE; AND 32 (C) THAT LAW ENFORCEMENT PERSONNEL MADE A CONTEMPORANEOUS RECORD OF 33 THE REASON FOR NOT MAKING AN ELECTRONIC RECORDING OF THE STATEMENTS; AND 34 (D) THAT IT IS PROVEN THAT ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES 35 EXISTED AT THE TIME OF THE CUSTODIAL INTERROGATION: 36 (I) THE QUESTIONS PUT FORTH BY LAW ENFORCEMENT PERSONNEL, AND THE 37 PERSON'S RESPONSIVE STATEMENTS, WERE PART OF THE ROUTINE PROCESSING OR 38 "BOOKING" OF THE PERSON; OR 39 (II) BEFORE OR DURING A CUSTODIAL INTERROGATION, AFTER HAVING 40 CONSULTED WITH HIS OR HER LAWYER, THE PERSON INDICATED THAT HE OR SHE 41 WOULD ONLY RESPOND TO THE OFFICER'S QUESTIONS IF HIS OR HER STATEMENTS 42 WERE NOT ELECTRONICALLY RECORDED AND A RECORD IS MADE OF SUCH REFUSAL; 43 OR 44 (III) THE CUSTODIAL INTERROGATION NECESSARILY TOOK PLACE IN ANOTHER 45 JURISDICTION AND WAS CONDUCTED BY OFFICIALS OF THAT JURISDICTION IN 46 COMPLIANCE WITH THE LAW OF THAT JURISDICTION; OR 47 (IV) EXIGENT CIRCUMSTANCES EXISTED WHICH PREVENTED THE MAKING OF, OR 48 RENDERED IT NOT FEASIBLE TO MAKE, AN ELECTRONIC RECORDING OF THE CUSTO- 49 DIAL INTERROGATION. 50 5. STATEMENTS, WHETHER OR NOT ELECTRONICALLY RECORDED, WHICH ARE 51 ADMISSIBLE UNDER APPLICABLE RULES OF EVIDENCE, AND ARE PROVEN BY CLEAR 52 AND CONVINCING EVIDENCE TO HAVE BEEN MADE BY THE PERSON VOLUNTARILY, AND 53 ARE RELIABLE, MAY BE ADMITTED INTO EVIDENCE IN A FELONY CRIMINAL 54 PROCEEDING BROUGHT AGAINST THE PERSON IF THE COURT FINDS: 55 (A) THE CUSTODIAL INTERROGATION OCCURRED BEFORE A GRAND JURY OR COURT; 56 OR S. 2345 3 1 (B) THE PERSON AGREED TO PARTICIPATE IN A NON-RECORDED CUSTODIAL 2 INTERROGATION AFTER HAVING CONSULTED WITH HIS OR HER LAWYER. 3 6. (A) COMPLIANCE WITH THE ELECTRONIC RECORDING REQUIREMENTS SET FORTH 4 IN THIS SECTION SHALL BE MONITORED BY THE OFFICE OF COURT ADMINISTRATION 5 THROUGH THE SUBMISSION OF FORMS BY THE TRIAL JUDGE AND THE PROSECUTOR IN 6 EACH CASE OF AN INTERROGATION THAT WAS NOT RECORDED BUT WAS NONETHELESS 7 INTRODUCED AS EVIDENCE IN A CRIMINAL CASE. THESE FORMS SHALL BE DEVEL- 8 OPED BY THE OFFICE OF COURT ADMINISTRATION, WITH THE EXPECTATION THAT 9 THE REPORTING FORMS SHALL IDENTIFY ANY PATTERNS OF NONCOMPLIANCE. 10 (B) COMPLIANCE WITH THE ELECTRONIC RECORDING REQUIREMENTS SET FORTH IN 11 THIS SECTION SHALL BE MONITORED BY THE DIVISION OF CRIMINAL JUSTICE 12 SERVICES THROUGH THE SUBMISSION OF FORMS BY THE INTERROGATING OFFICER OR 13 OFFICERS IN EACH CASE OF AN UNRECORDED CONFESSION, BOTH THOSE NOT 14 PRESUMED INADMISSIBLE INTO EVIDENCE UNDER SUBPARAGRAPHS (II), (III) AND 15 (IV) OF PARAGRAPH (D) OF SUBDIVISION FOUR OF THIS SECTION, OR THOSE 16 INADMISSIBLE UNDER THIS SECTION. THESE FORMS SHALL BE DEVELOPED BY THE 17 DIVISION OF CRIMINAL JUSTICE SERVICES, WITH THE EXPECTATION THAT THE 18 REPORTING FORMS SHALL IDENTIFY ANY PATTERNS OF NONCOMPLIANCE. 19 7.(A) EVERY ELECTRONIC RECORDING OF A CUSTODIAL INTERROGATION SHALL BE 20 CLEARLY IDENTIFIED AND CATALOGUED BY LAW ENFORCEMENT PERSONNEL. 21 (B) IF A FELONY CRIMINAL PROCEEDING IS BROUGHT AGAINST A PERSON WHO 22 WAS THE SUBJECT OF AN ELECTRONICALLY RECORDED CUSTODIAL INTERROGATION, 23 THE ELECTRONIC RECORDING SHALL BE PRESERVED BY LAW ENFORCEMENT PERSONNEL 24 UNTIL ALL APPEALS, POST-CONVICTION AND HABEAS CORPUS PROCEEDINGS ARE 25 FINAL AND CONCLUDED, OR THE TIME WITHIN WHICH THEY SHALL BE BROUGHT HAS 26 EXPIRED. 27 (C) IF NO FELONY CRIMINAL PROCEEDING IS BROUGHT AGAINST A PERSON WHO 28 HAS BEEN THE SUBJECT OF AN ELECTRONICALLY RECORDED CUSTODIAL INTERRO- 29 GATION, THE RELATED ELECTRONIC RECORDING SHALL BE PRESERVED BY LAW 30 ENFORCEMENT PERSONNEL UNTIL ALL APPLICABLE STATE AND FEDERAL STATUTES OF 31 LIMITATIONS BAR PROSECUTION OF THE PERSON. 32 S 3. This act shall take effect on the first of November next succeed- 33 ing the date on which it shall have become a law and shall apply to 34 custodial interrogations occurring on or after such effective date.