Provides that, as a general rule, any statement made during a custodial interrogation is inadmissible unless such interrogation was electronically recorded; provides exceptions as to when a statement will be admissible even if the custodial interrogation was not recorded.

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S1400-2011 Actions

• Mar 12, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• Mar 8, 2012: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
• Jan 4, 2012: REFERRED TO CODES
• Jan 7, 2011: REFERRED TO CODES

S1400-2011 Memo

BILL NUMBER:S1400

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to the electronic
recording of interrogations

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 in court as to what actually occurred during the
interrogation, thereby improving prosecution of the guilty while
affording protection to the innocent.

SUMMARY OF PROVISIONS:
Section 1 of the bill adds �60.47 to the Criminal Procedure Law. This
act will require the electronic recording of all custodial
interrogations at places of detention. If a recording is not made of
the interrogation, then any statements by the accused are presumed
inadmissible as evidence in any criminal proceeding charging a felony
offense.

Section 2 of the bill provides for suppression of evidence obtained in
violation of the new section �60.47.

Section 3 of the bill provides that if the prosecution intends to
offer a statement of the defendant at trial, notice must be given as
to whether such statement was electronically recorded.

Section 4 of the bill provides the effective date.

JUSTIFICATION:
The practice of electronically recording complete custodial
interrogations has been on the increase both in the state and in the
country.
The benefits of recording interviews are obvious and the value in
doing so has been widely recognized. Recording insures the integrity
of the fact finding process by recording accurately the full course
of the interrogation and reducing false denials that incriminating
admissions were made, or that such admissions were obtained by
coercion or intimidation. Recording also improves the quality of
police interrogations through easier monitoring by supervisors, use
of recordings for training purposes and the use of taped admissions
to confront suspected accomplices. Finally, recording helps prevent
the ill treatment of detainees and reduces the likelihood that the
detainee can lodge false complaints of physical or psychological abuse.

Where the practice of mandated recording has been implemented, law
enforcement organizations---even those initially opposed---have
almost universally found the practice beneficial.

LEGISLATIVE HISTORY:
2009-2010: (S.7877) Referred to Codes

FISCAL IMPACT:
To be determined.


EFFECTIVE DATE:
This act shall take effect 90 days after it shall have become a law,
and shall apply to any custodial interrogation that takes place on
and after such date.

S1400-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    1400

                         2011-2012 Regular Sessions

                              I N  SENATE

                               January 7, 2011
                                 ___________

  Introduced  by  Sen. 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 the electron-
    ic recording of interrogations

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1.  The  criminal  procedure  law  is amended by adding a new
  section 60.47 to read as follows:

  S 60.47 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
             ANTS.
    1. DEFINITIONS. AS USED IN THIS SECTION:

    (A) "ELECTRONIC RECORDING" MEANS A  CONTEMPORANEOUS  VIDEO  AND  AUDIO
  RECORDING,  OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
  AUDIO RECORDING.
    (B) "CUSTODIAL INTERROGATION" MEANS ANY QUESTIONING WHICH IS CONDUCTED
  IN A PLACE OF DETENTION OR DURING  WHICH  A  REASONABLE  PERSON  IN  THE
  SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR HERSELF TO BE IN CUSTODY.
    (C)  "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
  TY, HOLDING  FACILITY  FOR  PRISONERS,  PROSECUTOR'S  OFFICE,  OR  OTHER
  GOVERNMENT  FACILITY  WHERE  PERSONS ARE HELD IN DETENTION IN CONNECTION
  WITH CRIMINAL CHARGES WHICH HAVE BEEN OR MAY BE FILED AGAINST THEM.
    2. DURING THE PROSECUTION OF A  FELONY,  AN  ORAL,  WRITTEN,  OR  SIGN
  LANGUAGE  STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
  SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE  AGAINST  A  DEFENDANT  IN  A
  CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
  DIAL  INTERROGATION  IN  ITS  ENTIRETY, INCLUDING ANY ADMINISTRATION AND
  WAIVER, OR INVOCATION OF RIGHTS, THE RECORDING IS SUBSTANTIALLY ACCURATE
  AND NOT INTENTIONALLY ALTERED, AND ALL INDIVIDUALS WHO SPEAK DURING  THE
  INTERROGATION ARE IDENTIFIED BY NAME ON THE RECORDING.
    3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED  TO A CUSTODIAL
  INTERROGATION  IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN ANY

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD03670-01-1

 S. 1400                             2

  STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
  EVEN IF OTHERWISE IN COMPLIANCE WITH THIS  SECTION,  ARE  ALSO  PRESUMED
  INADMISSIBLE.
    4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
  AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND IF THE
  STATEMENT  IS  INCULPATORY,  WAS NOT MADE UNDER CIRCUMSTANCES CREATING A
  SUBSTANTIAL RISK THAT THE DEFENDANT MIGHT FALSELY INCRIMINATE HIMSELF OR
  HERSELF, AND:

    (A) EXIGENT CIRCUMSTANCES EXISTED  NECESSITATING  INTERROGATION  AT  A
  PLACE  IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL FACILITY,
  HOLDING FACILITY FOR PRISONERS, PROSECUTOR'S OFFICE, OR OTHER GOVERNMENT
  FACILITY WHERE PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL
  CHARGES WHICH HAVE BEEN OR MAY BE FILED  AGAINST  THEM,  AND  WHERE  THE
  REQUISITE RECORDING EQUIPMENT WAS NOT READILY AVAILABLE;
    (B)  THE  ACCUSED  REFUSED  TO HAVE HIS OR HER INTERROGATION ELECTRON-
  ICALLY 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.
    5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS TWO, THREE AND  FOUR
  OF  THIS  SECTION, THE COURT MAY ADMIT A STATEMENT IF IT BELIEVES, BASED
  ON A SHOWING OF GOOD CAUSE BY THE PEOPLE, THAT SUPPRESSION OF THE STATE-
  MENT IS TOO HARSH A REMEDY; THE COURT MUST THEN INSTRUCT THE  JURY  THAT
  IT  SHOULD CONSIDER THE FAILURE TO MAKE A RECORDING AS A FACT ADVERSE TO
  THE PEOPLE ON ANY ISSUE OF VOLUNTARINESS, OF THE CONTENT OF  THE  STATE-
  MENT, AND OF WHETHER THE STATEMENT WAS MADE.
    6. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:

    (A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
  BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
    (B)  A  SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
  GATION;
    (C) A STATEMENT MADE DURING 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 A FELONY HAS IN FACT OCCURRED; OR
    (G)  A  STATEMENT,  OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
  USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
    7. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
  OF A CUSTODIAL INTERROGATION FOR A PERIOD OF TEN  YEARS,  MEASURED  FROM
  THE DATE OF JUDGMENT.
    S 2. Section 710.20 of the criminal procedure law is amended by adding
  a new subdivision 8 to read as follows:

    8.  CONSISTS OF A RECORD OR POTENTIAL TESTIMONY RECITING OR DESCRIBING
  A STATEMENT OBTAINED IN VIOLATION OF SECTION 60.47 OF THIS CHAPTER.
    S 3. Subdivision 1 of section 710.30 of the criminal procedure law, as
  separately amended by chapters 8 and 194 of the laws of 1976, is amended
  to read as follows:

    1.  Whenever the people intend to offer at a trial (a) evidence  of  a
  statement  made  by  a defendant to a public servant, which statement if
  involuntarily made would render the evidence thereof  suppressible  upon
  motion  pursuant to subdivision three of section 710.20 OF THIS ARTICLE,
  or (b) testimony regarding an observation of the defendant either at the

 S. 1400                             3

  time or place of the commission of the offense or upon some other  occa-
  sion  relevant  to the case, to be given by a witness who has previously
  identified him as such, they must serve upon the defendant a  notice  of
  such  intention,  specifying the evidence intended to be offered AND, IN
  THE CASE OF A STATEMENT, WHETHER IT WAS ELECTRONICALLY RECORDED.
    S 4. This act shall take effect on the ninetieth day  after  it  shall
  have  become a law, and shall apply to any custodial interrogations that
  take place on and after such date.