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SPONSOR: |
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DATE TYPED: |
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HB |
549/aHCPAC |
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SHORT TITLE: |
Custodial Interrogation Recordings |
SB |
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ANALYST: |
Fox-Young |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
$0.1 Significant |
Recurring |
General
Fund |
|
|
|
|
|
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Attorney General
(AG)
Department
of Public Safety (DPS)
Corrections
Department (CD)
Administrative
Office of the Courts (AOC)
Administrative
Office of the District Attorneys (AODA)
Public
Defender Department (PDD)
SUMMARY
Synopsis of HCPAC Amendment
The
House Consumer and Public Affairs Committee Amendment makes a technical
adjustment to the bill. On page 3, line
3, the amendment strikes “D” and inserts “E,” correcting the reference to the
definition of “custodial interrogation.”
Synopsis
of Original Bill
House Bill 549 amends the Criminal Procedure
Act, adding a new section regarding electronic recordings of custodial
interrogations.
The bill provides that law enforcement officers shall
electronically record custodial interrogations, that defendants be advised
interrogations are being electronically recorded, that Miranda warnings be given to defendants before any interrogation
is performed, and that warnings and waivers of constitutional rights be
electronically recorded.
The bill provides that a law enforcement officer is exempt from electronically recording a custodial interrogation if he can establish by clear and convincing evidence that a defendant’s statements were voluntary and intelligently made after the defendant had been read his Miranda warnings and that the officer had good cause not to record the interrogation.
"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.
“Electronic recording” means a complete and
authentic electronic recording created by motion picture, videotape, audiotape
or digital media.
Significant
Issues
The Attorney General
(AG) notes that the definition of custodial interrogation contained in the bill
conflicts with the constitutionally established requirements of a custodial
interrogation. In Miranda v. Arizona,
the U.S. Supreme Court stated that “...by custodial interrogation, we mean
questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way.” Based on a well-established body
of case law that defines “custody” and “custodial interrogation,” AG reports
that custodial interrogation is an interrogation of a person who is in
police custody, and an officer conducting such an investigation is required
to advise the person of his rights to remain silent and to be represented by
counsel. As defined in the bill,
custodial interrogation means an interrogation conducted in “a structured
environment.”
The Department of Public Safety (DPS) notes that
custodial interrogation includes any words or actions that an officer should
know are reasonably likely to elicit an incriminating response from the
suspect. (Rhode Island v. Innis, 446
U.S. 291 (1980))
The
Department of Public Safety (DPS) notes that it has already implemented a
policy requiring uniformed officers to carry tape recorders while on duty and
that the majority of the patrol cars in the state police division are equipped
with mobile video recording equipment.
DPS further notes that the criminal investigations division records the
majority of custodial interrogations.
AG notes that the bill does not include
provisions detailing the consequences for cases in which electronic recording
procedures are breached; however, an implied consequence is the exclusion of
defendants’ statements.
FISCAL IMPLICATIONS
The Administrative Office of the District
Attorneys (AODA) notes that the bill will likely cause a significant increase
in suppression hearings, also requiring a commitment of attorney time to review
tapes in every case. Additional
resources for courts, district attorneys and public defend
ers will likely be needed to address workload
increases. Additionally, judicial
agencies will require funding to acquire equipment (with play-back and
duplicating capabilities) that is compatible with each type of media used by
law enforcement.
This bill is likely generate increased litigation, in the form of criminal trials and appeals, regarding the authority of the legislature to establish a rule of evidence, the effects of the bill on a defendant's constitutional rights, and questions regarding the procedures employed in particular cases. AG reports that its criminal appeals division will likely see an increase in cases as a result of the bill.
TECHNICAL ISSUES
AODA notes that the bill makes no provisions regarding the storage of tapes.
In subsection B (2) (a), reference is made to the definition of a custodial interrogation in paragraph one of Subsection D. The reference should be to paragraph one of Subsection E.
JCF/njw