HOUSE OF REPRESENTATIVES

150th GENERAL ASSEMBLY

HOUSE BILL NO. 360

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO ELECTRONIC RECORDATION OF CUSTODIAL INTERROGATIONS OF CHILDREN.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Part II, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 20. Electronic Recordation of Custodial Interrogations of Children.

§ 2001. Short title.

This chapter may be cited as the “Electronic Recordation of Custodial Interrogations of Children.”

§ 2002. Definitions.

For purposes of this chapter:

( 1) “Child” means as defined in § 901 of Title 10.

(2) “Crime” means as defined in § 233 of this title.

(3) “Custodial interrogation” means questioning or other conduct by a law enforcement officer which is reasonably likely to elicit an incriminating response from a child and occurs when a reasonable child in the same circumstances would consider themselves in custody.

(4) “Delinquent Act” means an act committed by a child that, if committed by an adult, would constitute a crime.

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

(6) “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.

(7) “Law enforcement officer” means either of the following:

a. An individual employed by a law enforcement agency whose responsibilities include enforcing criminal laws or investigating suspected criminal activity.

b. An individual acting at the request or direction of an individual described in paragraph (7)a. of this section.

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

( 9 ) “Place of detention” means a fixed location under the control of a law enforcement agency where individuals are questioned about alleged crimes or delinquent acts. The term includes a jail, police station, holding cell, and correctional or detention facility.

(10) “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.

( 11 ) “Statement” means a communication whether oral, written, electronic, or nonverbal.

§ 2003. Electronic recording requirement.

(a) Except as otherwise provided by §§ 2005 through 2010 of this title, a custodial interrogation at a place of detention, including the giving of any required warning, advice of the rights of the child being questioned, and the waiver of any rights by the child, must be recorded electronically in its entirety if the interrogation relates to a delinquent act or a crime.

(b) If a law enforcement officer conducts a custodial interrogation to which subsection (a) 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 child’s statements.

(c) A law enforcement officer shall prepare the report required by subsection (b) of this section as soon as practicable after completing the interrogation.

(d) 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 child’s statements made outside a place of detention.

(e) 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 a child.

§ 2004. Notice and consent not required.

Notwithstanding Chapter 24 of Title 11, a law enforcement officer conducting a custodial interrogation is not required to obtain consent to electronic recording from the child being interrogated or to inform the child 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 a child and the child’s lawyer or a child and the child’s parent or guardian.

§ 2005. Exception for exigent circumstances.

A custodial interrogation to which § 2003 of this title 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.

§ 2006. Exception for child’s refusal to be recorded electronically.

(a) A custodial interrogation to which § 2003 of this title otherwise applies need not be recorded electronically if the child to be interrogated indicates that the child will not participate in the interrogation if it is recorded electronically. If feasible, the agreement to participate without recording must be recorded electronically.

(b) If, during a custodial interrogation to which § 2003 of this title otherwise applies, the child being interrogated indicates that the child will not participate in further interrogation unless electronic recording ceases, the remainder of the custodial interrogation need not be recorded electronically. If feasible, the child’s agreement to participate without further recording must be recorded electronically.

(c) A law enforcement officer, with intent to avoid the requirement of electronic recording in § 2003 of this title, may not encourage a child to request that a recording not be made.

§ 2007. 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 § 2003 of this title.

§ 2008. Exception based on belief recording not required.

(a) A custodial interrogation to which § 2003 of this title 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 child being interrogated may have committed an act for which § 2003 of this title requires that a custodial interrogation be recorded electronically.

(b) If, during a custodial interrogation under subsection (a) of this section, the child 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 § 2003 of this title requires that a custodial interrogation be recorded electronically, continued custodial interrogation concerning that act must be recorded electronically, if feasible.

§ 2009. Exception for safety of a child or protection of identity.

A custodial interrogation to which § 2003 of this title 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 child 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.

§ 2010. Exception for equipment malfunction.

All or part of a custodial interrogation to which § 2003 of this title 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. If the equipment fails, the law enforcement officer shall make a reasonable effort to record the interrogation electronically on any available device. The law enforcement office shall also prepare a written or electronic report explaining the reason for the malfunction and summarizing the custodial interrogation process and the child’s statements. The law enforcement officer shall prepare the report as soon as practicable after completing the interrogation.

§ 2011. Burden of persuasion.

If the prosecution relies on an exception in §§ 2005 through 2010 of this title to justify a failure to record electronically a custodial interrogation, the prosecution must prove by a preponderance of the evidence that the exception applies.

§ 2012. Notice of intent to introduce unrecorded statement.

If the prosecution intends to introduce in its case in chief a statement made by a child during a custodial interrogation to which § 2003 of this title applies which was not recorded electronically, the prosecution shall serve the child or child’s attorney with written notice of that intent and of any exception on which the prosecution intends to rely. The prosecution must serve the notice no later than the time a court has provided for the filing of pretrial motions or such later time as a court may, by rule, direct.

§ 2013. Procedural remedies.

(a) Unless the court finds that an exception in §§ 2005 through 2010 of this title applies, the court shall consider the failure to record electronically all or part of a custodial interrogation to which § 2003 of this title applies as a factor in determining whether a statement made during the interrogation is admissible, including whether it was voluntarily made.

(b) If the court admits into evidence a statement made by a child during a custodial interrogation that was not recorded electronically in compliance with § 2003 of this title, the court, on request of the child or the child’s attorney, shall give a cautionary instruction to the jury.

§ 2014. Handling and preserving an 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 consistent with the law of this State governing the preservation of evidence in criminal and delinquency cases.

§ 2015. Rules relating to electronic recording.

(a) The Attorney General shall adopt rules to implement this chapter, which each law enforcement agency that is a governmental entity of this State shall enforce.

(b) The rules adopted under subsection (a) of this section must address all of the following topics:

(1) How an electronic recording of a custodial interrogation must be made.

(2) The collection and review of electronic recordings, or the absence thereof, by supervisors in each law enforcement agency.

(3) The assignment of supervisory responsibilities and a chain of command to promote internal accountability.

(4) A process for explaining noncompliance with procedures and imposing administrative sanctions for a failure to comply that is not justified.

(5) 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.

(6) A process for monitoring the chain of custody of an electronic recording.

(c) The rules adopted under paragraph (b)(1) 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.

§ 2016. Limitation of liability.

(a) A law enforcement agency that is a governmental entity in this State which has implemented procedures reasonably designed to enforce the rules adopted under § 2015 of this title and ensure compliance with this chapter is not subject to civil liability for damages arising from a violation of this chapter.

(b) This chapter does not create a right of action against a law enforcement officer.

§ 2017. Self-authentication.

(a) In any pretrial or post trial 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.

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

§ 2018. No right to electronic recording or transcript.

(a) This chapter does not create a right of a child to require a custodial interrogation to be recorded electronically.

(b) This chapter does not require preparation of a transcript of an electronic recording of a custodial interrogation.

Section 2. This Act takes effect 6 months following its enactment into law.

SYNOPSIS

This Bill amends Title 11 to require that custodial interrogations of children, at a place of detention, by a law enforcement officer, be electronically recorded. The Bill requires the law enforcement officer to prepare a written explanation if the interrogation is not electronically recorded. No electronic recording is required if the child refuses to be interrogated if the interrogation is recorded. The Bill contain an exception if the safety of the child, law enforcement officer or informant would be jeopardized. The prosecution has the burden of proving one of the Bill's exceptions for the admission of a child's statement that was not electronically recorded. Both law enforcement officer and agency have civil immunity for implementing and enforcing provisions of Bill. This Bill will become effective 6 months after enactment.