HOUSE BILL 382

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Hector H. Balderas

FOR THE CORRECTIONS OVERSIGHT, COURTS AND JUSTICE COMMITTEE

AN ACT

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 an individual during a custodial interrogation:

                (1) the custodial interrogation shall be electronically recorded in its entirety. If conducted in a police station, the custodial interrogation shall be recorded by a method that includes visual and audio recording;

                (2) before the custodial interrogation and during the electronic recording, the individual shall be advised of the individual's constitutional rights regarding self-incrimination and the right to counsel. If the individual knowingly, intelligently and voluntarily waives the individual's constitutional rights, the 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, and all individuals present during the 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 the officer can establish by clear and convincing evidence that:

                (1) the individual's statement was voluntary, reliable and made after the individual knowingly, intelligently and voluntarily waived the individual's 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 E of this section was not available and the requisite electronic recording equipment was not reasonably 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 individual'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 individual is suspected of committing a criminal offense.

          E. As used in this section:

                (1) "custodial interrogation" means questioning initiated by a law enforcement officer after an individual has been taken into custody or otherwise deprived of freedom of action in any significant way, including any words or actions that an officer should know are reasonably likely to elicit an incriminating response. An interrogation is presumed to be custodial if it is 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 reasonably 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, 2005.

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