46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO LAW ENFORCEMENT; REQUIRING ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS; ESTABLISHING PROCEDURES FOR ELECTRONIC RECORDINGS; ENACTING A NEW SECTION OF THE CRIMINAL PROCEDURE ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the Criminal Procedure Act is enacted to read:

"[NEW MATERIAL] ELECTRONIC RECORDINGS OF CUSTODIAL INTERROGATIONS.--

A. A law enforcement officer shall comply with the following procedures when taking an oral, written or sign language statement of a defendant during a custodial interrogation:

(1) the custodial interrogation shall be electronically recorded in its entirety;

(2) before the custodial interrogation and during the electronic recording, the defendant shall be informed that the interrogation is being electronically recorded and shall be advised of his constitutional rights regarding self-incrimination and the right to counsel. If the defendant knowingly, intelligently and voluntarily waives his constitutional rights, his waiver shall be electronically recorded;

(3) the electronic recording device used shall be capable of making an accurate recording, the operator shall be competent and the original recording shall not be altered; and

(4) all voices on the electronic recording that are material to the custodial interrogation shall be identified on the recording, along with the date, time and place of the custodial interrogation.

B. A law enforcement officer shall comply with the provisions of this section unless he can establish by clear and convincing evidence that:

(1) the defendant's statement was voluntary, reliable and made after the defendant knowingly, intelligently and voluntarily waived his constitutional rights; and

(2) the law enforcement officer had good cause not to electronically record the entire custodial interrogation. Examples of good cause are:

(a) a location identified in Paragraph (1) of Subsection D of this section was not available and the requisite electronic recording equipment was not readily available; or

(b) the electronic recording equipment failed and obtaining replacement equipment was not feasible.

C. An electronic recording of a custodial interrogation shall be preserved until the defendant's conviction for an offense related to the interrogation is final and all appeals are exhausted, or the prosecution of the offense is barred by law.

D. The provisions of this section shall apply to custodial interrogations in which the defendant is suspected of committing a felony or misdemeanor offense.

E. As used in this section:

(1) "custodial interrogation" means an interrogation conducted in a police station, police car, courthouse, correctional facility, community correctional center, detention facility or any other structured environment where adequate recording equipment is readily available; and

(2) "electronic recording" means a complete and authentic electronic recording created by motion picture, videotape, audiotape or digital media."

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.