SB 162 — AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO ELECTRONIC RECORDATION OF CUSTODIAL INTERROGATIONS.

Summary

Confessions are powerful evidence of guilt. This Act adopts the Uniform Law Commission's Uniform Electronic Recordation of Custodial Interrogations Act to promote truth-finding, promote efficiency, and protect constitutional values. To accomplish this, this Act mandates audio recording or audio and video recording of the custodial interrogation process by law enforcement when the interrogation relates to a crime described in § 4201(c) of Title 11, which designates certain crimes as violent felonies, or to a delinquent act. Recognizing that a blanket requirement of recording electronically all interrogation is not feasible, this Act provides 6 exceptions to the recording mandate: (1) exigent circumstances, (2) an individual's refusal to be recorded, (3) interrogations occurring in other jurisdictions, (4) when the interrogator reasonably believes that the offense involved is not one the Act mandates must be recorded, (5) when the interrogator or interrogator's supervisor reasonably believes electronic recording would reveal a confidential informant's identity or jeopardize the safety of the officer, the person interrogated, or another individual, and (6) equipment malfunctions. Further, this Act requires the prosecution to notify the defense of an intention to introduce an unrecorded statement and of the exception that permitted the lack of recording. This Act requires the prosecution to prove by a preponderance of the evidence that an exception applies. This Act also prescribes remedies for violations of the electronic recording requirement, including the giving of a cautionary instruction to the jury. Finally, this Act requires the Attorney General to adopt rules to implement this Act, which are to be enforced by each law enforcement agency.

Bill Text

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This bill introduces new requirements for the electronic recordation of custodial interrogations in Delaware.

• § 2003

  A custodial interrogation at a place of detention, 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 relates to a crime described in § 4201(c) of this title or to a delinquent act.

  Requires electronic recording of specific custodial interrogations.

• § 2005

  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.

  Establishes an exception for electronic recording under exigent circumstances.

• § 2006

  A custodial interrogation to which § 2003 of this title 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.

  Allows for non-recording if the individual refuses to be recorded.

• § 2009

  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 individual being interrogated, or another individual.

  Provides a safety-based exception for not recording interrogations.

• § 2012

  If the prosecution intends to introduce in its case in chief a statement made during a custodial interrogation to which § 2003 of this title applies which was not recorded electronically, the prosecution shall serve the defendant with written notice of that intent and of any exception on which the prosecution intends to rely.

  Imposes a requirement for prosecution to notify defendants about unrecorded statements intended for use.

• § 2013

  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.

  Mandates the court to consider non-recording as a factor in statement admissibility.

• § 2014

  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 cases.

  Requires law enforcement agencies to create policies for recording preservation.

• § 2004

  Notwithstanding Chapter 24 of this title, a law enforcement officer conducting a custodial interrogation is not required to obtain consent to electronic recording from the individual being interrogated or to inform the individual that an electronic recording is being made of the interrogation.

  Exempts law enforcement from needing consent for recording interrogations.

Action History

1. March 20, 2018

   Introduced and Assigned to Judicial & Community Affairs Committee in Senate

Sponsors

• Sean M. Lynn · Primary
• Stephanie T. Bolden · Cosponsor
• Debra Heffernan · Cosponsor
• Edward S. Osienski · Cosponsor
• Trey Paradee · Cosponsor
• Kimberly Williams · Cosponsor
• John A. Kowalko · Cosponsor
• Helene M. Keeley · Cosponsor
• Gerald L. Brady · Cosponsor
• David Bentz · Cosponsor
• Paul S. Baumbach · Cosponsor
• Harris B. McDowell · Cosponsor
• Robert Marshall · Cosponsor
• Bruce C. Ennis · Cosponsor
• Charles Potter Jr. · Primary
• James Johnson · Primary
• Margaret Rose Henry · Primary

Subjects