Interrogations. The federal and state constitutions provide a series of protections for individuals when they interact with law enforcement officers, including the right to remain silent and the right to counsel during a custodial interrogation. A custodial interrogation generally means any non-routine questioning, actions, or words by a law enforcement officer designed to elicit an incriminating response from a person after the person has been taken into custody or otherwise been deprived the freedom of action in any significant way.
Prior to engaging in a custodial interrogation of a person, an officer must provide a Miranda warning to advise the person of the person's constitutional rights and ability to invoke those rights any time during the interrogation. A person may waive those rights if:
Use of Statements Obtained During Interrogation. If an officer fails to give a person an effective Miranda warning or fails to obtain a valid waiver prior to engaging in a custodial interrogation, a court may rule any incriminating statements made by the person during the interrogation inadmissible as evidence. Courts consider the totality of the circumstances when evaluating whether a waiver is valid.
Uniform Law Commission. The Uniform Law Commission (ULC) is a state-supported, nonpartisan, nonprofit organization that drafts and proposes specific statutory language that may be adopted by states. In 2010, the ULC drafted the Uniform Electronic Recordation of Custodial Interrogations Act, which requires law enforcement to electronically record the entirety of custodial interrogations. The provisions have been adopted by Vermont in statute and Indiana by court rule.
Electronic Recording. Law enforcement officers must electronically record custodial interrogations that occur at a place of detention if the interrogation is of a juvenile or related to a felony, unless an exception applies. Both audio and video recording must be used for custodial interrogations occurring at a jail, police or sheriff's station, holding cell, or correctional or detention facility. Custodial interrogations at other places of detention must be recorded by audio means at a minimum. Consent is not required before electronically recording a custodial interrogation, but the individual must be informed that an electronic recording is being made.
An officer conducting a custodial interrogation at a place of detention without electronically recording it, or outside a place of detention, must prepare a report as soon as practicable explaining:
Exceptions. The requirement for electronic recording does not apply if:
Use of Unrecorded Statements. The prosecuting attorney must provide a defendant with notice of intent to introduce an unrecorded statement made during custodial interrogation and prove any exception to the recording requirement applies by a preponderance of the evidence. The court must consider the failure to electronically record all or part of a custodial interrogation in determining whether a statement is admissible unless it determines an exception applies. If a person's unrecorded statement is admitted into evidence, the court must, upon the person's request, give a cautionary instruction to the jury.
Policies and Procedures. Each law enforcement agency must adopt and enforce policies and procedures that address the following:
Definitions of law enforcement agency and officer are modified. Law enforcement agencies must adopt policies and procedures, rather than rules, regarding the electronic recordation of interrogations.
The committee recommended a different version of the bill than what was heard. PRO: This bill will reduce wrongful convictions based on false confessions. This is not prescriptive; individual departments may feel that body cameras are the best practice, but there are many cost-effective ways to meet the bill's requirements. Law enforcement agencies should have the information they need to secure convictions. These practices are implemented in 27 other states and the District of Columbia. False confessions can be obtained by ignoring evidence of a suspect's innocence and inadvertently feeding them details of the crime during hours of interrogation. The public expect interrogations to be recorded. If a case involves a confession, that will be attacked with vigor and there will be many pre-trial hearings on admissibility. The biggest problems with technology have been resolved at this point. It is not fair to society for a dangerous criminal to be on the streets with someone innocent standing in for them in prison. We owe it to our victims to prevent this from happening. Juries should be able to look at the actual interaction and determine whether the defendant is guilty and how much knowledge has been shown.
CON: This bill is much more expansive than just requiring recording true custodial interrogations. It requires recording interrogations out in the field, and the most rational, practical way to do that is with body cameras. Storage of body camera footage is expensive.
OTHER: Counties are concerned that the bill will require law enforcement agencies to purchase equipment for every officer and retrofit offices to comply with these changes, and want to make sure the state is reimbursing that cost.
PRO: This reflects the Uniform Law Commission's recommended provisions. False confessions are the most significant factor in wrongful convictions. The wrongful convictions are very costly to the government and certainly to the individual and their families. There are efficient and less costly ways to meet this requirements under the bill. The field requirements could be met without having to do body-cams.
CON: Local law enforcement officers are unequivocally against coerced convictions and believe that recording interrogations at physical locations is a best practice. The requirements for the recordings in the field are problematic. Body-cams are not explicitly required, but this would be the best way to accomplish the goal of the bill. This would be costly, particularly for the smaller jurisdictions.