HB 0572 by *Dennis. (*SB 0511 by *Faulk.)

Uniform Laws – As introduced, enacts the “Uniform Electronic Recordation of Custodial Interrogations Act.” – Amends TCA Title 37; Title 38; Title 39 and Title 40.

Fiscal Summary

Increase State Expenditures – $4,200/One-Time $9,000/Recurring Increase Local Expenditures – $161,400/One-Time* $323,100/Recurring*

Bill Summary

This bill enacts the Uniform Electronic Recordation of Custodial Interrogations Act which generally:
(1) Requires that a custodial interrogation by a law enforcement officer at a place of detention, including the giving of any required warning or advice of rights, such as Miranda rights, and the waiver of any rights by the individual, must be recorded electronically in its entirety by both audio and video means if the interrogation relates to a felony, a delinquent act, or a crime resulting in a specific physical, mental, or financial injury or death to another person. If an officer conducts such a custodial interrogation without electronically recording it, the officer must prepare a report explaining the reason for not complying with this requirement and summarizing the custodial interrogation process and the individual’s statements. A law enforcement officer conducting a custodial interrogation is not required to obtain consent to electronic recording or to inform the individual that an electronic recording is being made;
(2) Specifies that the recording is not required when there are exigent circumstances or equipment failure or when the individual in custody indicates that the individual will not participate in the interrogation if it is recorded electronically. A law enforcement officer, with intent to avoid the recording requirement, may not encourage an individual to request that a recording not be made. 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 this bill’s requirement of electronic recording. Also, the recording is not required if an 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;
(3) Specifies that if the prosecution relies on an exception described in (2) to justify a failure to record electronically a custodial interrogation, the prosecution must prove by a preponderance of the evidence that the exception applies. If the prosecution intends to introduce in its case in chief a statement made during a custodial interrogation to which the recording requirement applies and which was not recorded electronically, then the prosecution must serve the defendant with written notice of that intent and of any exception on which the prosecution intends to rely;
(4) Specifies that unless the court finds that an exception in (2) applies, the court must consider the failure to record electronically as a factor in determining whether a statement made during the interrogation is admissible, including whether it was voluntarily made or is reliable. If the court admits into evidence a statement made during a custodial interrogation that was not recorded electronically in compliance with this bill, the court, on request of the defendant, must give a cautionary instruction to the jury. 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;
(5) Details the manner in which such electronic recordings must be identified, catalogued, and preserved;
(6) Specifies that 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 this bill and ensure compliance with this bill is not subject to civil liability for damages arising from a violation of this bill; and
(7) Specifies that this bill does not create a right of an individual to require that a custodial interrogation be recorded electronically.

This bill will take effect on January 1, 2012.