SECTION 2.  DEFINITIONS.  In this [act]:

 

            (1)  “Custodial interrogation” means conduct or questioning of a detainee or other conduct by a law enforcement officer which is reasonably likely to elicit an incriminating response from an individual[DRB1]  and occurs when a reasonable personindividual in the position of the individualdetainee would consider that the personindividual is in custody,.  and any The term includes a statement made by the individualdetainee in response to the questioning or conduct or questioning, from the time the individualdetainee should have been advised of the individual’s Miranda rights until the conduct or questioning or conduct and responses terminate.

            (2)  “Electronic recording” means an audio or an audio and video recording that accurately[DRB2]  records a custodial interrogation.

            (3)  “Law enforcement agency” means a governmental entity of this state or of a political subdivision of this state whose responsibilities includeresponsible for enforcement of criminal laws or the investigation of suspected criminal activity. 

            (4)  “Law enforcement officer” means;

                        (A) an individual employed by a law enforcement agency and, or someone acting at that individual’s behest, where that individual’swhose responsibilities include enforcement of criminal laws or the investigation of suspected criminal activity; or

                        (B)  someone acting at the direction of that individual.

            (5)  “Place of detention” means a fixed location under the control of a law enforcement agency where an individual may be questioned about a criminal charge or allegation of [insert the state’s term for juvenile delinquency].  The term includes a jail, police or sheriff’s station, holding cell, and correctional or detention facility.

            (6)  “Record” used as a noun means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

            (67)  “Statement” means a communication, whether it is oral, in a record,; written, including, but not limited to, e-mail or other electronically transmitted verbal communications; nonverbal,; or in sign language.

            (7)  “Qualified immunity” means immunity from civil suit because of the status of the entity or individual, as determined by the facts and law applicable to the circumstances of the case.

 

            SECTION 3.  WHEN ELECTRONIC RECORDINGATION REQUIREMENTD.

            [(a)]  Except as otherwise provided in Sections 4 through 9Sections 5 through 10, a custodial interrogation conducted at a place of detention, including administration of any Miranda warnings to and waiver of Miranda rights by the individual being questioneddetainee, must be electronically recorded in its entirety by both audio and visual means if the interrogation relates to a [felony][crime][delinquent act][offense] described in [DRB3] ]____________________].               

            [(b) A custodial interrogation or part of a custodial interrogation that relates to [a][an] [felony][crime][delinquent act][offense] described in subsection (a) and takes place outside a place of detention must be electronically recorded.]

            SECTION 4. DISCLOSURE NOT REQUIRED.

            (ca)  A law enforcement officer conducting a custodial interrogation is not required to inform the individual being interrogateddetainee that an electronic recording is being made of the interrogation.

            (be)  An electronic recording of a custodial interrogation is exempt from:

                        (1)  requirements under [insert title and section numberscite statute] that otherwise requires that an individual be informed of, or consent to, the recording of the individual’s conversations; and

                        (2)  disclosure under [insert section numbers ofcite the state’s public records disclosure act.]         

            SECTION 45.  EXCEPTION FOR EXIGENT CIRCUMSTANCES.  A custodial interrogation to which Section 3 otherwise applies would apply need not be electronically recorded if recording is not feasible because of exigent circumstances and a law enforcement officer conducting the interrogation electronically records an explanation of the exigent circumstances before conducting the interrogation, if feasible, or as soon as practicable thereafter.

            SECTION 56.  EXCEPTION FOR SPONTANEOUS ORFOR RESPONSE TO        ROUTINE BOOKING QUESTIONING. STATEMENT.  A statement made by an individual need not be electronically recorded if:

                        (1)  it is a spontaneous statement made outside the course of a custodial interrogation; or

                        (2)  the statement it is made in response to questioning that is asked routinely during the processing of the arrest of the individualdetainee and is not expected or intended to elicit an incriminating response.

            SECTION 67.  EXCEPTION FOR INDIVIDUAL’S REFUSAL TO BE ELECTRONICALLY RECORDED.  A custodial interrogation to which Section 3 otherwise would applies apply need not be electronically recorded to the extent thatif, before the interrogation the individual to be interrogateddetainee indicates that the individualdetainee will not participate in the interrogation or a portion of the interrogation only if it is not electronically recorded.  and, iIf feasible, the agreementrefusal to  participate without recording ismust be electronically recorded.  If at any time during the interrogation the detainee indicates that electronic recordation is permissible, recording must begin or resume.

            SECTION 7.  EXCEPTION FOR INTERROGATIONS CONDUCTED BY OTHER JURISDICTIONS  [DRB4] 

            [DRB5] [SECTION 8.  EXCEPTION BASED ON ACTUAL OR REASONABLE BELIEF OF LAW ENFORCEMENT OFFICER.  A custodial interrogation to which Section 3 appliesotherwise would apply need not be electronically recorded if:

                        (1)  the interrogation occurs when thea individual being interrogateddetainee who is suspected only of a crimeconduct that does not give rise to a requirement for which an electronic recordingation is not required, but the individual reveals facts giving a law enforcement officer conducting the interrogation reason to believe that the detainee may have committed a [felony][crime][delinquent act][offense] has been committee for which Section 3 requires that a custodial interrogation be recorded; however, if feasible, continued custodial interrogation concerning the [felony][crime][delinquent act][offense] revealed must be electronically recorded; or

                        (2)  the interrogation occurs when no law enforcement officer conducting the interrogation has actual knowledge of facts and circumstances suggesting that the detainee may have committed a [felony][crime][delinquent act][offense] has been committed for which Section 3 requires that a custodial interrogation be recorded.]; or

            SECTION 9.  EXCEPTION FOR SAFETY OF INDIVIDUAL OR PROTECTION OF IDENTITY.            A custodial interrogation to which Section 3 otherwise would apply need not be recorded if (3)  the officer conducting the interrogation or the officer’s superior reasonably believes that making an electronic recordingation might disclose the identity of a confidential informant or will jeopardize the safety of an officer, the individual being interrogateddetainee, or another personindividual., or risk disclosure of the identity of a confidential informant, and, iIf feasible, an explanation of the basis offor that belief ismust be electronically recorded 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.

            SECTION 910.  EXCEPTION FOR EQUIPMENT MALFUNCTION. 

            (a)  If both audio and video recordingation of a custodial interrogation are otherwise required by Section 3, recordingation may be by audio alone is acceptable if a technical problem in video recordingation occurs which prevents video recordation despite reasonable maintenance efforts on the available recording equipment, and timely repair or replacement is not feasible.

            [(b)  If both audio and video recordingation of a custodial interrogation are otherwise required by Section 3, recordingation may be by video alone is acceptable if a technical problem in audio recordingation occurs which prevents video recordation despite reasonable maintenance efforts on the available recording equipment, and timely repair or replacement is not feasible.]

            ([b][c])  All or part of a custodial interrogation to which Section 3 otherwise would apply need not be recorded to the extent thatif recordingation is not possible because the available electronic recording equipment fails, despite reasonable maintenance efforts, on the available recording equipment and timely repair or replacement is not feasible.

            SECTION 101.  BURDEN OF PERSUASION.  If the [state][prosecuting attorney] government relies on an exception in Sections 4 through 9Sections 5 through 10 to justify a failure to make an electronic recording of a custodial interrogation, the [state][prosecuting attorney]government must prove by a preponderance of the evidence that the exception applies.

            SECTION 112.  OFFICER’S REPORT.

            (a)  When a law enforcement officer conducts a custodial interrogation [at a place of detention] without complying with Section 3 on the basis that an exception under Sections 4 though 9 applies, the officer shall prepare a [written report][electronic record]report in a record explaining the reasons for the decision:noncompliance.

            (b)  A law enforcement officer shall prepare the [report][record] required by subsection (a) as soon as practicable after completing the interrogation, even if the officer has made a contemporaneous electronic recording explaining the reasons for not complying with Section 3.

            (c)  The only sanction that may be imposed on a law enforcement officer for failure to comply with subsection (a) or (b) is administrative discipline.

            SECTION 123.  NOTICE OF INTENT TO RELY ON EXCEPTIONINTRODUCE UNRECORDED STATEMENT. 

            (a)  If the [state][prosecuting attorney] government intends to introduce in its case-in-chief a statement made during a custodial interrogation that does not comply with Section 3,and to rely on an exception in Sections 4 through 9 to justify a failure to make an electronic recording of the interrogation, the [state][prosecuting attorney] government shall serve on the defendant written notice of that intent and of any exception upon which the government intends to rely not later than the time specified by [insert cite to appropriate law or rules of procedure other than this [act].             

            SECTION 143.  REMEDIES

            (a)  Unless the [appropriate court] court finds that an exception in Sections 4 thorough 9 applies, the court shall consider the failure to make an electronic recording of all or part of a custodial interrogation to which Section 3 applies in determining whether a statement made during the interrogation is inadmissible because it was not voluntarily made [or was not reliable].

 

            (b)  Unless the [appropriate court]court finds that an exception in Sections 4 through 9Sections 5 through 10 applies, if the court admits into evidence a statement made during a custodial interrogation that was not electronically recorded in compliance with Section 3, the court shall, upon request of the defendant, give appropriate instructions to the jury. explaining that, although the law required the law enforcement officers to Those instruction must, at a minimum, explain to the jury that the police did not electronically record the entire interrogation process, though the law required them tothey did not do so, and, as a result, that the jury is therefore deprived of the most reliable and complete evidence of what was said and done by each of the participants during the interrogation.

 

            [(c)  Unless the [appropriate court] finds that an exception in Sections 4 through 9 applies, if the court admits into evidence a statement made during a custodial interrogation that was not electronically recorded in compliance with Section 3, the court, in an appropriate case, shall admit testimony about factors that may affect the voluntariness and reliability of a statement made during a custodial interrogation, if the defendant first offers evidence sufficient to permit a finding by a preponderance of the evidence of facts relevant to the weight of the statement the full significance of which may not be readily apparent to a layperson.  In deciding whether to admit expert testimony, the court may consider:  the vulnerability to suggestion of the individual who made the statement; the individual’s youth, low intelligence, poor memory, or mental retardation; use by a law enforcement officer of sleep deprivation, fatigue, or drug or alcohol withdrawal as in interrogation technique; the failure of the statement to lead to the discovery of evidence previously unknown to a law enforcement agency or to include unusual elements of a crime that have not been made public previously or details of the crime not easily guessed and not made public previously; inconsistency between the statement and the f acts of the crime whether an officer conducting the interrogation educated the individual about the facts of the crime rather than eliciting them or suggested to the individual that the individual had no choice except to confess; promises of leniency; and the absence of corroboration of the statement by objective evidence.  The court shall permit appropriate expert testimony offered by the prosecution to rebut expert testimony introduced by the defendant.  Noting in this subsection prohibits the court from admitting under law other than this [act] expert testimony about the voluntariness or reliability of the statement whether the testimony is offered by the defense or the prosecution.]

 

            [(c)  Unless the court finds that an exception in Sections 5 through 10 applies, if a statement made during a custodial interrogation that was not electronically recorded as required by Section 3 is admitted into evidence in the prosecution’s case-in-chief, upon motion by the defendant and an offer of proof sufficient to permit a finding by a preponderance of the evidence of facts relevant to the weight of the statement, the full significance of which may not be readily apparent to a layperson, the court shall permit the defense to introduce expert testimony regarding factors that may affect the voluntariness and reliability of statements made during custodial interrogation. In deciding whether to admit expert testimony, the court shall consider whether evidence supports the existence in the case of factors that may affect voluntariness and reliability of statements, such as:

                        (1)  the detainee’s vulnerability to suggestion because of factors such as age, low intelligence, poor memory, or mental retardation;

                        (2)  use by a law enforcement officer of interrogation techniques designed to weaken the detainee’s ability to resist coercion, such as sleep deprivation, fatigue, [drug or alcohol withdrawal,] suggestion that the detainee had no choice except to confess, or promises of leniency;

                        (3)  the absence of facts disclosed in the detainee’s statement that indicate knowledge of the crime, such as evidence previously unknown to a law enforcement agency or  details or unusual elements of the crime that had not been made public, were not suggested to the detainee by a law enforcement officer involved in the interrogation, and were not easily guessed;

                        (4)  any inconsistency between the statement and facts of the crime derived from other sources; or

                        (5)  the absence of corroboration of the statement by objective evidence.

            (d)  The court shall permit appropriate expert testimony offered by the prosecution to rebut expert testimony introduced by the defendant under subsection (c).]

            ([c][e])  Nothing in this section affects the admissibility of testimony about the voluntariness or reliability of a statement under law of this state other than this [act].

            ([d][f])  A law enforcement agency that has adopted and enforced rules reasonably designed to ensure compliance with the terms of this [act] and a law enforcement officer of the agency who has complied with thosesuch rules have qualified immunity from any civil suitliability for damages allegedly arising from a violation of this Act[act].

            ([e][g])  AEach law enforcement agency in this state shall adopt and enforce regulations providing for administrative discipline of a law enforcement officer found by a court or by a supervisory official of the agency to have violated this [act].  [The rules must provide a range of disciplinary sanctions reasonably designed to promote compliance with this [act].]

            [SECTION 154.  MONITORING REQUIREMENT.  The [appropriate state agency] shall monitor compliance with the requirement under Section 3 of electronic recording of custodial interrogations].this [act]].

            SECTION 165.  HANDLING AND PRESERVATON OF ELECTRONIC RECORDING.  An electronic recording of a custodial interrogation must be identified, accessed, and preserved in compliance with law of this state other than this [act].

            SECTION 176.  RULES GOVERNING MANNER OF ELECTRONIC RECORDINGATION. 

            (a)  [Each Llaw enforcement agenciesagency in this state][tThe state agency charged with monitoring law enforcement’s compliance with this [act] by law enforcement agencies and officers] shall adopt and enforce rules governing the manner in which electronic recordings of custodial interrogations are to be made.

            (b)  The rules adopted under subsection (a) must:

                        (1)  encourage law enforcement officers investigating a [feloniesy][crimes][delinquent acts][offenses] designated in Section 3[(a)] to conduct a custodial interrogations only at a places of detention unless it is necessary to do otherwisnot feasible to do soe;

                        (2)  establish standards for the angle, focus, and field of vision of a camera which reasonably promote accurate recording of a custodial interrogation at a place of detention and reliable assessment of its accuracy and completeness; and

                        (3)  provide, when a custodial interrogation occurs outside a place of detention:

                                    (A)  for electronic recordingation at a place of detention of a statement from the individual who was interrogateddetainee; and

                                    (B)  that, as soon as practicable, a law enforcement officer conducting the interrogation shall prepare a written record explaining the decision to interrogate outside a  place of detention and summarizing the custodial interrogation process.

            SECTION 187.  IMPLEMENTING RULES.  [AEach law enforcement agency subject to his [act]in this state][tThe state agency charged with monitoring compliance with this [act] by law enforcement agencies and officers] law enforcement’s compliance with this act] shall adopt and enforce rules that implement this [act].  The rules must provide for:[DRB6] 

            [SECTION 189.  SELF-AUTHENTICATION.  Unless the defendant offers evidence sufficient to permit a finding that the recording is not authentic, Iin any pretrial or post-trial proceeding, an electronic recording of a custodial interrogations is self-authenticating if it is accompanied by a certificate of authenticity by an appropriate[DRB7]  law enforcement officer sworn under oath, unless the defendant offers evidence sufficient to permit a finding that the recording is not authentic.]

            SECTION 2019.  NO RIGHT TO ELECTRONIC RECORDINGATION CREATED.  This [act] does not create a right of a detaineean individual being interrogated to require electronic recordingation of a custodial interrogation.

 

 

[No change in boilerplate provisions.]