ByRepresentatives Peterson, Simmons, Bateman, Sells, Davis, Lovick, Orwall, Ryu, Ortiz-Self, Senn, Dolan, Fitzgibbon, Ormsby, Gregerson, Hackney, Valdez, Macri, and Frame; by request of Uniform Law Commission

AN ACT Relating to the uniform electronic recordation of custodial interrogations act; reenacting and amending RCW 9.73.030; adding a new chapter to Title 10 RCW; and providing an effective date.

(1) "Custodial interrogation" means express questioning or other actions or words by a law enforcement officer which are reasonably likely to elicit an incriminating response from an individual and occurs when reasonable individuals in the same circumstances would consider themselves in custody.

(2) "Electronic recording" means an audio recording or audio and video recording that accurately records a custodial interrogation. "Record electronically" and "recorded electronically" have a corresponding meaning.

(3) "Law enforcement agency" means a governmental entity or person authorized by a governmental entity or state law to enforce criminal laws or investigate suspected criminal activity. The term includes a nongovernmental entity that has been delegated the authority to enforce criminal laws or investigate suspected criminal activity. The term does not include a law enforcement officer.

(5) "Person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, or government; governmental subdivision, agency, or instrumentality; or any other legal or commercial entity.

(6) "Place of detention" means a fixed location under the control of a law enforcement agency where individuals are questioned about alleged crimes or status offenses. The term includes a jail, police or sheriff's station, holding cell, correctional or detention facility, police vehicle, and in the case of juveniles, schools.

(7) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

NEW SECTION. Sec. 3. ELECTRONIC RECORDING REQUIREMENT.(1) Except as otherwise provided by sections 5 through 10 of this act, a custodial interrogation, including the giving of any required warning, advice of the rights of the individual being questioned, and the waiver of any rights by the individual, must be recorded electronically in its entirety if the interrogation subject is a juvenile or if the interrogation relates to a felony crime. A custodial interrogation at a place of detention must be recorded by both audio and video means.

(2) If a law enforcement officer conducts a custodial interrogation to which subsection (1) of this section applies without electronically recording it in its entirety, the officer shall prepare a written or electronic report explaining the reason for not complying with this section and summarizing the custodial interrogation process and the individual's statements.

(4) As soon as practicable, a law enforcement officer conducting a custodial interrogation outside a place of detention shall prepare a written report explaining the decision to interrogate outside a place of detention and summarizing the custodial interrogation process and the individual's statements made outside a place of detention.

(5) This section does not apply to a spontaneous statement made outside the course of a custodial interrogation or a statement made in response to a question asked routinely during the processing of the arrest of an individual.

NEW SECTION. Sec. 4. CONSENT NOT REQUIRED—NOTICE.Notwithstanding RCW 9.73.030 and 9.73.090, a law enforcement officer conducting a custodial interrogation is not required to obtain consent to electronic recording from the individual being interrogated, but must inform the individual that an electronic recording is being made of the interrogation. This chapter does not permit a law enforcement officer or a law enforcement agency to record a private communication between an individual and the individual's lawyer.

NEW SECTION. Sec. 5. EXCEPTION FOR EXIGENT CIRCUMSTANCES.A custodial interrogation to which section 3 of this act otherwise applies need not be recorded electronically if recording is not feasible because of exigent circumstances. The law enforcement officer conducting the interrogation shall record electronically an explanation of the exigent circumstances before conducting the interrogation, if feasible, or as soon as practicable after the interrogation is completed.

NEW SECTION. Sec. 6. EXCEPTION FOR INDIVIDUAL'S REFUSAL TO BE RECORDED ELECTRONICALLY.(1) A custodial interrogation to which section 3 of this act otherwise applies need not be recorded electronically if the individual to be interrogated indicates that the individual will not participate in the interrogation if it is recorded electronically. If feasible, the agreement to participate without recording must be recorded electronically.

(2) If, during a custodial interrogation to which section 3 of this act otherwise applies, the individual being interrogated indicates that the individual will not participate in further interrogation unless electronic recording ceases, the remainder of the custodial interrogation need not be recorded electronically. If feasible, the individual's agreement to participate without further recording must be recorded electronically.

(3) A law enforcement officer, with intent to avoid the requirement of electronic recording in section 3 of this act, may not encourage an individual to request that a recording not be made.

NEW SECTION. Sec. 7. EXCEPTION FOR INTERROGATION CONDUCTED BY OTHER JURISDICTION.If a custodial interrogation occurs in another state in compliance with that state's law or is conducted by a federal law enforcement agency in compliance with federal law, the interrogation need not be recorded electronically unless the interrogation is conducted with intent to avoid the requirement of electronic recording in section 3 of this act.

NEW SECTION. Sec. 8. EXCEPTION BASED ON BELIEF RECORDING NOT REQUIRED.(1) A custodial interrogation to which section 3 of this act otherwise applies need not be recorded electronically if the interrogation occurs when no law enforcement officer conducting the interrogation has knowledge of facts and circumstances that would lead an officer reasonably to believe that the individual being interrogated may have committed an act for which section 3 of this act requires that a custodial interrogation be recorded electronically.

(2) If, during a custodial interrogation under subsection (1) of this section, the individual being interrogated reveals facts and circumstances giving a law enforcement officer conducting the interrogation reason to believe that an act has been committed for which section 3 of this act requires that a custodial interrogation be recorded electronically, continued custodial interrogation concerning that act must be recorded electronically, if feasible.

NEW SECTION. Sec. 9. EXCEPTION FOR SAFETY OF INDIVIDUAL OR PROTECTION OF IDENTITY.A custodial interrogation to which section 3 of this act otherwise applies need not be recorded electronically if a law enforcement officer conducting the interrogation or the officer's superior reasonably believes that electronic recording would disclose the identity of a confidential informant or jeopardize the safety of an officer, the individual being interrogated, or another individual. If feasible and consistent with the safety of a confidential informant, an explanation of the basis for the belief that electronic recording would disclose the informant's identity must be recorded electronically at the time of the interrogation. If contemporaneous recording of the basis for the belief is not feasible, the recording must be made as soon as practicable after the interrogation is completed.

NEW SECTION. Sec. 10. EXCEPTION FOR EQUIPMENT MALFUNCTION.(1) All or part of a custodial interrogation to which section 3 of this act otherwise applies need not be recorded electronically to the extent that recording is not feasible because the available electronic recording equipment fails, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible.

(2) If both audio and video recording of a custodial interrogation are otherwise required by section 3 of this act, recording may be by audio alone if a technical problem in the video recording equipment prevents video recording, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible.

(3) If both audio and video recording of a custodial interrogation are otherwise required by section 3 of this act, recording may be by video alone if a technical problem in the audio recording equipment prevents audio recording, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible.

NEW SECTION. Sec. 11. BURDEN OF PERSUASION.If the prosecution relies on an exception in sections 5 through 10 of this act to justify a failure to record electronically a custodial interrogation, the prosecution must prove by a preponderance of the evidence that the exception applies.

NEW SECTION. Sec. 12. NOTICE OF INTENT TO INTRODUCE UNRECORDED STATEMENT.If the prosecution intends to introduce in its case in chief a statement made during a custodial interrogation to which section 3 of this act applies which was not recorded electronically, the prosecution, not later than the time specified by the local rules governing discovery, shall serve the defendant with written notice of that intent and of any exception on which the prosecution intends to rely.

NEW SECTION. Sec. 13. PROCEDURAL REMEDIES.(1) Unless the court finds that an exception in sections 5 through 10 of this act applies, the court shall consider the failure to record electronically all or part of a custodial interrogation to which section 3 of this act applies in determining whether a statement made during the interrogation is admissible, including whether it was voluntarily made.

(2) If the court admits into evidence a statement made during a custodial interrogation that was not recorded electronically in compliance with section 3 of this act, the court, on request of the defendant, shall give a cautionary instruction to the jury.

NEW SECTION. Sec. 14. HANDLING AND PRESERVING ELECTRONIC RECORDING.Each law enforcement agency in this state shall establish and enforce procedures to ensure that the electronic recording of all or part of a custodial interrogation is identified, accessible, and preserved throughout the length of any resulting sentence, including any period of community custody extending through final discharge.

NEW SECTION. Sec. 15. RULES RELATING TO ELECTRONIC RECORDING.(1) Each law enforcement agency that is a governmental entity of this state shall adopt and enforce rules to implement this chapter.

(e) A supervisory system expressly imposing on individuals in specific positions a duty to ensure adequate staffing, education, training, and material resources to implement this chapter; and

(3) The rules adopted under subsection (2)(a) of this section for video recording must contain standards for the angle, focus, and field of vision of a recording device which reasonably promote accurate recording of a custodial interrogation at a place of detention and reliable assessment of its accuracy and completeness.

NEW SECTION. Sec. 16. LIMITATION OF LIABILITY.(1) A law enforcement agency that is a governmental entity in this state which has implemented procedures reasonably designed to enforce the rules adopted pursuant to section 15 of this act and ensure compliance with this chapter is not subject to civil liability for damages arising from a violation of this chapter.

NEW SECTION. Sec. 17. SELF-AUTHENTICATION.(1) In any pretrial or posttrial proceeding, an electronic recording of a custodial interrogation is self-authenticating if it is accompanied by a certificate of authenticity sworn under oath or affirmation by an appropriate law enforcement officer.

(2) This chapter does not limit the right of an individual to challenge the authenticity of an electronic recording of a custodial interrogation under law of this state other than this chapter.

NEW SECTION. Sec. 18. NO RIGHT TO ELECTRONIC RECORDING OR TRANSCRIPT.(1) This chapter does not create a right of an individual to require a custodial interrogation to be recorded electronically.

NEW SECTION. Sec. 19. UNIFORMITY OF APPLICATION AND CONSTRUCTION.In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

NEW SECTION. Sec. 20. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.This chapter modifies, limits, and supersedes the electronic signatures in global and national commerce act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. Sec. 7003(b).

(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;

(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

(2) Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.

(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.

(4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation.

NEW SECTION. Sec. 22. SEVERABILITY.If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.